Documenting the legal relationship created by the Healthcare Coalition and how the Coalition will operate during normal activities and during emergencies provides the following benefits:
- Minimizes misunderstandings among Coalition members.
- Memorializes oral agreements and promotes continuity of systems and organizations’ relationships despite changes in personnel or leadership.
- Provides consistent and authoritative materials to serve as a basis for training and education.
- Provides materials that are useful for developing exercises and evaluative instruments, and for performing AARs and achieving organizational change.
Provided below are examples of the different options that are available for establishing the preparedness and response relationship between Healthcare Coalition member organizations.
7.2.1 Memorandum of Understanding
A common method used to document concurrence between parties on an intended course of action is a Memorandum of Understanding (MOU). In general terms, an MOU provides the structure and intentions of the understanding between parties, but is not legally binding unless specifically stated (Exhibit 7-2).
Exhibit 7-2. Memorandum of Understanding (MOU)*
A Memorandum of Understanding, or MOU, is a formal document embodying the firm commitment of two or more parties to an undertaking, and setting out its general principles, but falling short of constituting a detailed contract or agreement.
*Oxford Dictionary of Law, Elizabeth A. Martin (Ed.), Oxford University Press, 2006.
Depending on the specific circumstances of the Coalition, an MOU may be an attractive option for memorializing the agreements to participate in the Coalition, with its information sharing, agreed upon mutual aid relationships, and other collaborative commitments. The written instrument should acknowledge that the relationship is directly between the member organizations that comprise the Healthcare Coalition. The Coalition’s response organization (HCRT) only facilitates the coordination between them during emergency response. The HCRT never controls or commands the Coalition’s member organizations. The following elements should be considered in an MOU:
- Purpose: General statements regarding the situations in which the MOU may be used, who the participants are, and what they agree to do to support one another. The voluntary (rather than contractual) nature of the relationship among member organizations should be clearly delineated if that is the intent.
- Definition of terms: While it is expected that NIMS-consistent terminology will be used, each geographic area has terms that are specific to their healthcare organizations or current mutual aid construct. The terminology for preparedness and response should be explicitly defined in the written instrument. For example, consistent terminology and definitions for injury severity categories should be established for the purpose of accurately tallying aggregate casualty counts.
- Information sharing: The commitment to share incident data and other information necessary for developing the Healthcare Coalition should be described.
- Principles of mutual aid: If facilitating mutual aid becomes a Coalition response objective, the document should describe in specific terms how resources will be shared between Coalition member organizations (see mutual aid instruments below). Principles outlining other services facilitated by the Coalition should be described as well.
- Miscellaneous provisions: These include statements about the term of the written instrument (indicating when it would need to be renewed and any termination methods), terms of cooperation on addressing liability between members, statements referencing patient privacy, and/or other components that legal advisors believe important to incorporate.
- Attachments: Any preformatted tools that the agreement expects to utilize during response are best included as attachments to the agreement itself.
Responsibility for writing the MOU for the Healthcare Coalition may vary by locale. The process may be accomplished by operational level personnel to ensure the MOU addresses the operational details necessary for mutual aid actions under extreme circumstances. Legal advisors from each Coalition member organization should have the opportunity to review, provide input, and approve the document.
7.2.2 Memorandum of Agreement
Another written instrument is the Memorandum of Agreement (MOA). In some legal arenas, the MOA is viewed as more binding than the MOU, while in others the terms “agreement” and “understanding” are used interchangeably. The Healthcare Coalition may write an MOA (Exhibit 7-3) specifically to define only “good faith” intent to provide assistance under emergency conditions. The materials that the MOA could cover are the same as those presented above for an MOU.
Exhibit 7-3. Memorandum of Agreement*
A Memorandum of Agreement (MOA) defines the general area of conditional agreement between two or more parties, but one party’s action depends on the other party’s action. The MOA can be complemented with support agreements that detail reimbursement schedules and specific terms and conditions.
* Adapted from FEMA National Preparedness Directorate, Memorandum of Agreement/Memorandum of Understanding Template and Guidance; March 2009.
Again, healthcare planners who are contemplating the development of a written instrument should consult with their legal advisors to determine the best option to establish their Healthcare Coalition. Because these written instruments define the legal relationship between Coalition members, they must undergo a careful legal review.
7.2.3 Contracts and Compacts
A contract is “an agreement between two or more persons to create an obligation to do or not to do a particular thing.” Although they may have little applicability to a mutual aid instrument, contracts can be effective mechanisms for establishing commitment from external entities to individual healthcare organizations (Tier 1) and to the Coalition (Tier 2). For example, emergency contingency contracts can be established in which a vendor promises a specific service or item upon request after a hazard impact. An example might be an emergency services contract with the local water authority that can be activated if a water outage impacts healthcare organizations. The Healthcare Coalition may wish to address emergency services contracting through a collaborative approach. This can help avoid unmanaged competition between Coalition members for scarce resources during an emergency. Mechanisms for fair distribution of a critical resource or service can then be established.
A compact is “an agreement or contract between persons, nations or States. A compact is commonly applied to working agreements between and among States concerning matters of mutual concern.” The most widely known compact in emergency management is the Emergency Management Assistance Compact (EMAC), which provides authorities and mechanisms for States to share public sector resources.
Compacts may be valuable written instruments for Healthcare Coalitions that have the following characteristics:
- Coalition that extends across State boundaries: If a Healthcare Coalition has been established in a geographic area that crosses State boundaries, the compact may address mutual aid and cooperative assistance between the States. Issues that could be addressed include healthcare licensure, certifications, liability, and other issues related to personnel crossing State lines. This would be an instrument between State authorities that benefits the Healthcare Coalition, rather than an instrument between Coalition member organizations.
- Coalition that borders State boundaries: If a State boundary separates two Healthcare Coalitions that are pursuing regional cooperation, EMAC or a more specific compact between the involved States may be used to address interstate concerns. Since EMAC has historically covered primarily government-owned assets, a separate compact may be necessary to address sharing of private sector resources across State lines.
7.2.4 Mutual Aid and Cooperative Assistance
Written mutual aid instruments frame and document the processes for providing mutual aid, as well as the manner in which resources will be shared between healthcare organizations during emergencies. These instruments should address any expected reimbursement for the costs of assistance (invoicing, timing of payment, etc.).
Healthcare Coalitions may develop mutual aid instruments that provide an initial period (i.e., eight hours) of personnel mutual aid that is uncompensated. Any assistance provided after a certain time interval or preset threshold is then reimbursed. Traditionally, expenses incurred by donor organizations providing uncompensated mutual aid have not been recoverable through Robert T. Stafford Act disaster funds because a documented expense has not been generated by the supported organization. In deciding how to address compensation for mutual aid, Coalition members should consult their legal advisors and consider how this issue is addressed by their local and State governments.
Regardless of the path chosen for a particular Healthcare Coalition, it is important to establish a formal process in which prospective members of the Coalition have input (Exhibit 7-4).
Exhibit 7-4. Example process for establishing a Master Mutual Aid Agreement for a Healthcare Coalition*
A regional Healthcare Coalition in the State of Oregon employed a multistep process in developing its Master Mutual Aid Agreement, which is briefly outlined below.
- Research “best practices” for mutual aid agreements that have been developed and used in other areas
- Select models from best practices and modify as necessary to fit existing structure
- Refine the end document
- Gather stakeholders and present the concept, explain the mission, and seek buy-in or suggested improvement
- Model in a single hospital that is representative of the region
- Seek legal review from model hospital with feedback
- Refine the end document
- Distribute the end product and communicate date due back once executed
- Provide continuous follow-up and support, as needed
- Remind stakeholders of due date periodically and check status of process on their end
- Share what other hospitals have signed once a few are onboard to encourage broader participation
- Once all executed copies of the document are secured, plan a signing or celebratory ceremony to recognize the collaborative process
* Personal communication with regional coordinator for Oregon HPP Region 2. All hospitals in Oregon HPP Region 2 have executed a Master Mutual Aid Agreement that defines sharing, reimbursement, and other legal aspects including that the provision of resources is done on a voluntary, not mandatory basis.
- Black’s Law Dictionary, Sixth Ed., West Publishing Company, 1990.
- Black’s Law Dictionary, Sixth Ed., West Publishing Company, 1990.
- Information on EMAC is available at: http://www.emacweb.org.
- Information on the Robert T. Stafford Disaster Relief and Emergency Assistance Act (PL 100-707) is available at: http://www.fema.gov/about/stafact.shtm.
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