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Letter
to the American Hospital Association from Health and Human
Services
The Secretary of Health and Human Services
Washington, D.C. 20201
January 9, 2003
Dick Davidson
President
American Hospital Association
325 Seventh Street. NW
Seventh Moor
Washington, DC 20004
Dear Dick,
This is in response to your question regarding the liability
protection offered by Section 304 of the Homeland Security
Act. Section 304 is intended to alleviate liability concerns
and ensure that vaccine is available and can be administered,
particularly in the event of an actual or potential smallpox-related
public health emergency.
Under Section 304, a "covered person" when used
with respect to the administration of a covered countermeasure
includes "a health care entity under whose auspices
such countermeasure was administered." Section 304
is triggered in the event a smallpox countermeasure is administered
pursuant to a declaration of the Secretary of the Department
of Health and Human Services. The effective date of the
Act, as established in Section 4 of the Homeland Security
Act, is January 24, 2003.
You asked whether liability protection is available under
the following scenario:
Healthcare worker from Hospital A is vaccinated at Hospital
B and then sheds vaccinia to a patient at Hospital A while
working within the scope of employment.
It is our intention to word the Section 304 Declaration
to include the Secretary's determination that hospitals
that designate employees to receive smallpox countermeasures
under the state's smallpox vaccination plan are participants
in the program and thus are healthcare entities under whose
auspices the countermeasure is administered. After consulting
with the U.S. Department of Justice, we believe that under
this scenario Hospital A would be deemed a covered person
under the Act.
If you or members of your staff have any further questions
about this matter, please feel free to contact Stewart Simonson,
Deputy General Counsel, at (202) 690-7741.
Sincerely,
Tommy G. Thompson
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