by Thomas J. Gilbert and Shontia Fox
Now that COVID-19 vaccines have been approved, the focus has shifted to determining the fastest way to get the vaccines administered. Nurses have come out of retirement, volunteering their time to help with the shortage of qualified vaccinators. Emergency Medical Technicians could provide a tremendous resource to accomplish that task. EMTs have the ability to reach into communities wherein the population would be unable to easily access major medical centers or distribution areas.
The question posed by Illinois health officials is whether paramedics who administer the vaccine in their capacity as a member of a licensed EMS provider retain legal immunity. There is statutory authority under the Illinois Emergency Medical Services Systems Act (EMS Act; 210 ILCS 50/) that under certain circumstances, duly licensed personnel administering vaccinations pursuant to the Act will be afforded immunities from all but willful and wanton misconduct.
The EMS Act specifically allows the Director of the Illinois Department of Public Health to issue written orders temporarily modifying individual scopes of practice in response to public health emergencies for period not exceeding 180 days. On December 14, 2020, the Director exercised this authority and modified the regulations to authorize licensed or certified individuals under the Act to administer COVID-19 vaccines.
In order to participate, EMTs must be giving vaccines under an EMS system (resource hospital) that has developed a system plan to administer vaccines. At a minimum, the plans must be a written policy outlining the types of vaccines being administered. The plans shall provide for a training program, which will include administration, documentation, and education about vaccine side effects or adverse reactions. Further, the plans shall provide: (1) when EMTs will be used for vaccine administration; Paramedics Can Administer (2) where they will be administering the vaccines; (3) a quality assurance plan for tracking and documenting the use of EMS; and (4) annual continuing education for EMTs as it relates to vaccine administration and medication education. EMTs shall refrain from administering any vaccine to a person under six years of age.
In addition to the preceding limitations, EMTs are prohibited from administering vaccines unless they are (1) acting under the authorization of the EMS Medical Director for their respective jurisdiction; (2) responding to a request for assistance from a certified local health department or hospital; and (3) working under the direction of IEMA and IDPH, an IEMA-certified emergency services and disaster agency, or a certified local health department that is enrolled in IDPH’s immunization program and operating pursuant to a vaccine provider agreement with IDPH.
As an additional layer of protection, the Secretary of Health and Human Services also declared COVID-19 to be a public health emergency warranting liability protections. The Public Readiness and Emergency Preparedness Act (PREP Act) limits legal liability for losses relating to the administration of the COVID-19 vaccine. (42 U.S.C. § 247d-6d) The immunity applies to all types of legal claims under state and federal law. The sole exception to PREP Act immunity is for death or serious physical injury caused by willful misconduct. There are four requirements for PREP Act immunity to apply: (1) the individual or entity must be a covered person; (2) the legal claim must be for a loss; (3) the loss must have a causal relationship with the administration or use of a covered countermeasure; and (4) the medical product that caused the loss must be a covered countermeasure. Paramedics administering the COVID-19 vaccine would likely qualify for immunity under this Act.
In summary, EMTs in Illinois are provided a substantial blanket of immunities and protection under federal and state laws for their conduct while providing vaccine injections for COVID-19. The immunities are limited to ordinary negligence (not willful or wanton conduct) while the vaccines are being administered through an agency duly licensed and sanctioned by the state or local governmental authority.