Disasters and Public Health Emergencies

Transcription

1 Disasters and Public Health Emergencies Planning and Preparing for New and Emerging Risks 2015 Long Term Care Webinar Series Tuesday, October 13, :00 3:00 p.m. EDT

2 Speakers Ernest B. Abbott Of Counsel Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. Washington, D.C Ted Lotchin Of Counsel Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C. Washington, D.C

3 Agenda Natural Disasters and Public Health Emergencies Emergency Preparedness for Long Term Care Providers Federal Disaster Assistance Programs Questions? 3

4 Relative Cost Burden for Katrina, Rita FEMA Cost Estimates For Recent US Disasters (2005) Disaster FEMA Cost Estimate (millions) Affected Population (millions) Cost per Capita (millions) Katrina & Rita (2005) $37, $8,244 World Trade Center (2001) $8, $428 Northridge Earthquake (1994) $9, $308 Hurricane Andrew (1992) $2, $194 Hurricane Iniki (1992) $ $329 Loma Prieta Earthquake (1989) $1, $57 4

5 Escalation of Catastrophic Losses in U.S. Inflation Adjusted Dollars Source: 2014 Munich Re, NatCatSERVICE; Property Claim Services (PCS), a division of Verisk Analytics. As of January

6 Natural Catastrophic Events Global

7 Floods Presidential flood disaster declarations ( ) One Two Three Four 7

8 Wildfires Wildfires of 250+ acres ( ) 8

9 Hurricanes Number of hurricanes expected in 100-year period 20 to to 60 More than 60 9

10 Earthquakes Possibility of strong shaking in 100-year period Very low Moderate High 10

11 Natural Disasters and Public Health Emergencies 11

12 Poll 12

13 What Counts as a Natural Disaster These Days? Emergencies come in many forms from house fires to accidents to hurricanes and can strike anywhere in America. We cannot always control how, when, or where they occur, but we can prepare practical responses before disasters strike. By discussing with our families, friends, and neighbors how we will protect ourselves and our communities, we can contribute to and share in a stronger, more resilient society. President Obama (Aug. 31, 2015) 13

14 What About a Public Health Emergency? According to the World Health Organization... an occurrence or imminent threat of an illness or health condition, caused by bio terrorism, epidemic or pandemic disease, or a novel and highly fatal infectious agent or biological toxin, that poses a substantial risk of a significant number of human fatalities or incidents or permanent or long-term disability Caused by ANY disruption of critical systems Sustained loss of electrical power to hospitals, homes, businesses, utility infrastructure, etc. Flooding and flood waters causing evacuation of major population areas, along with environmental contamination Evacuation of major populations and separation from regular doctors/pharmacies/care providers with loss of medical histories, consent forms, custody forms, etc. 14

15 Emergency Management: Simplified First Responders are first to respond All emergencies start locally As scale/complexity increase, local governments request support from the state When situation is beyond capability of state, the Governor asks the President for help Catastrophic response: resources from Multiple jurisdictions and agencies Multiple levels of government 15

16 Emergency Management: Simplified (continued) Federal, state and local responders must: Speak the same language Have arrangements in place to help each other Know how to communicate with each other Set priorities, avoid duplication of response effort How do LTC facilities interface with government responders? 16

17 Who Is Part of a Catastrophic Response? Who is In Charge? Response environment is populated with: Local first responders with their chain of command: Police Fire Departments of Transportation Utilities State responders with their chain of command: State Police National Guard Transportation Departments Environmental and Health Officials Federal responders with their chains of command: FEMA/DHS Corps of Engineers Federal Police Military Civilian Agencies (DOT, DOE, GSA, DHS, EPA, etc.) Private/non-profit/volunteer sector 17

18 Emergency Preparedness for Long Term Care Providers 18

19 Impact on Particular Facilities Emergency Costs Debris removal, extra security, temporary shoring up of structures to prevent additional damage, emergency generators Damage to Physical Property Buildings and their contents Computer systems Infrastructure Increase in Operating Costs Business Continuity If operations cannot resume quickly, will patients and staff move elsewhere? 19

20 Critical Need for Emergency Preparedness Hurricane Katrina affected 120 out of 300 nursing homes in Louisiana, requiring evacuation of residents across state and region Multiple, overlapping statutes create duty for facilities to ensure safety and general welfare for residents, staff and others on-site Not to mention overarching business interests in ensuring continuity of operations and mitigating risk of catastrophic losses 20

21 Unique Planning and Preparedness Challenges LTC facilities do not operate on a 9-5 schedule Often called upon to provide assistance to surrounding community during disasters or public health emergencies Vulnerable resident population requires extensive advanced planning that considers unique care and treatment needs 21

22 Requirements for Long Term Care Facilities According to CMS, LTC facility must be administered in a manner that enables it to use resources effectively and efficiently LTC facility must have detailed written plans and procedures to meet all potential emergencies and disasters, such as fire, severe weather and missing residents LTC facility must: Train all employees in emergency procedures Periodically review procedures with existing staff Carry out unannounced staff drills using those procedures 22

23 Requirements for Long Term Care Facilities (continued) Each facility should tailor its disaster plan to its geographic location and resident population Periodic review is a judgment call made by administration based on facility s unique circumstances Changes in physical plant, changes in surrounding location, etc. can prompt review of emergency plan Surveyors instructed to review facility s disaster and emergency preparedness plan, and then ask a series of questions to three employees (2 staff members and charge nurse): If the fire alarm goes off, what would you do? If you discover that a resident is missing, what would you do? 23

24 CMS Emergency Preparedness Checklist CMS updated its guidance to facilities in Feb Revised checklist provides specific tasks for completion in several functional areas, such as: All-hazards continuity of operation planning Risk and hazard assessment Collaboration with emergency management agencies, suppliers/providers Communication infrastructure contingency planning Develop shelter-in-place and evacuation plans Resident identification/relocation and caregiver communication Review and test emergency management plan 24

25 Steps in the Emergency Planning Process Form a collaborative planning team ID core planning team Form a common framework Define and assign roles and responsibilities Determine a regular schedule of meetings Understand the situation ID threats and hazards Assess risk Prioritize threats and hazards Determine goals and objectives 25

26 Steps in the Emergency Planning Process (continued) Plan development ID specific courses of action Plan preparation, review and approval Write and review plan Address basic plan components, along with functional addenda (e.g., evacuation; shelter in place; etc.) and threat- or hazard-specific addenda (e.g., hurricane; flood; disease outbreak; etc.) Share plan internally for review and approval Plan implementation and maintenance Train internal stakeholders and community partners Exercise plan Review, revise and maintain plan 26

27 Key Principles in Emergency Management Planning and preparedness must begin with senior leadership Need a champion administrator with employee and clinician support who will have decision-making authority to implement planning process Effective planning process requires partnerships and collaboration across facility and beyond Must involve every relevant department/business unit, and reach out to community partners Emergency management plan should adopt an all-hazards approach All-hazard planning encourages emergency managers to address all of the hazards that threaten their jurisdiction in a single emergency operations plan, instead of relying on standalone plans. 27

28 Key Principles in Emergency Management (continued) Government agencies rely on concepts and systems from National Response Framework in order to coordinate response efforts Developed to address all domestic hazards and threats NRF uses NIMS in order to achieve this goal Nationwide operations template allows public/private stakeholders to work together in responding to identified hazard Key concepts Mutual Aid and common command structure ICS is command structure within NIMS framework Planned, organized structure to support local responders Unified chain of command not unity of command Standardization of terminology Facilities/resource management Communications/information management 28

29 Key Principles in Emergency Management (continued) Emergency management plan should address prevention, protection, mitigation, response and recovery Should use five phases as framework for planning and implementation Comprehensive plan design must also account for residents, staff, and others with special needs Must incorporate provisions for vulnerable populations with a wide range of needs Planning process must address unique needs of each facility Since no two facilities are exactly alike, emergency preparedness plan should not be a carbon copy 29

30 Key Principles in Emergency Management (continued) Routine, multi-hazard training should be conducted with facility and external partners Tabletop exercises should be conducted prior to finalizing emergency management plan Communication is key to success 30

31 Federal Disaster Assistance Programs 31

32 FEMA Public Assistance Program Triggered by Presidential Declaration State and local governments, including public authorities, are eligible, as well as non-profit entities that perform a governmenttype function Cost share grants: Not less than 75% of the net eligible costs of performing eligible work Grants based on eligibility, not resources of facility Grants can include improvements to pre-disaster condition 32

33 FEMA Eligibility of LTC Facilities Publicly owned institutions: ELIGIBLE Non-profit institutions: ELIGIBLE For-profit Institutions: NOT ELIGIBLE 33

34 FEMA Public Assistance Program (continued) Eligibility 1. Eligible Applicant are you a public or non-profit institution? 2. Eligible Work Emergency Work debris removal and measures to prevent imminent threats to property, health or safety Permanent Work repair, restoration, reconstruction, or replacement of damaged (eligible) facilities 3. Eligible Costs Actual Costs determined at closeout SRIA Pilot Projects Fixed estimate agreements 34

35 FEMA Public Assistance Program (continued) Key Issues for LTC Facilities Discretionary Program Eligibility Federal grant requirements New super circular (2 CFR Part 200) replacing 44 CFR Part 13 Duplication of benefit/insurance Improvements/mitigation measures Audits and appeals Retroactive deobligations 35

36 FEMA Public Assistance Program - Caution Warning: Discretionary Program Stafford Act, 305: The Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Federal Government in carrying out the provisions of this Act. 36

37 Eligible Work Required by/caused by a declared major disaster or emergency Located in a county that is declared for public assistance Legal responsibility of eligible applicant 37

38 Emergency Work vs. Permanent Work 1. Emergency Work Only the incremental cost of Debris Removal Emergency Measures essential to address immediate threat to life, property, public health and safety includes Emergency mass care shelter, food, medical care; search and rescue; evacuations; etc. Provision of rescue, care, shelter, and essential needs to individuals with household pets and service animals and to such pets and animals Exclusions: Straight time permanent employees Lost revenue Donations Increased operating cost 38

39 Emergency Work vs. Permanent Work (continued) 2. Permanent work Stafford Act 406 Repair Restore Reconstruct Replace facilities damaged by disaster event Recurring controversies 50% rule: repair vs. replacement Code and Standard upgrades Insurance and Donations 39

40 Net Eligible Cost and Improvements Grants based on actual cost as determined by accounting reconciliation/closeout after construction Forces very extensive federal oversight to assure no fraud, goldplating, unreasonable cost contracts FEMA funds rebuilding of facilities per: Design of facility prior to disaster but Consistent with applicable codes and standards in effect prior to disaster, plus Mitigation measures required by Regional Administrator Section 406 Mitigation 40

41 Eligible Costs Reasonable and Compliant with Federal Requirements Eligible Costs Must be Reasonable Old: OMB Circular A-87 and A-122; New: Super Circular Federal Procurement Regulations: 2 CFR Part 200 has replaced 44 CFR Part 13 for new disasters! Competitive procurement Cost analysis Cost plus percent of cost contracts illegal Compliance with environmental requirements/nepa Deductions: FEMA deducts assistance available from insurance and from other sources 41

42 Sandy Recovery Improvement Act Pilot Projects: Stafford Act 428 FEMA and Applicant reach agreement on eligible cost prior to grant award FEMA funds rebuilding of facilities per: Agreement based on careful review of damage, eligibility, mitigation FEMA reimbursement capped at agreed-to amount (no appeals!) Cost savings (total cost below agreed-to amount) can be retained for mitigation or other eligible purposes Issues: Scope of audit OIG review 42

43 2nd Caution: FEMA Options After Non-Compliance with Grant Terms and Conditions (2 C.F.R ) a) Temporarily withhold cash payments pending correction of the deficiency by the non-federal entity or more severe enforcement action by the Federal awarding agency or pass-through entity b) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance c) Wholly or partly suspend or terminate the Federal award d) Initiate suspension or debarment proceedings (or in the case of a pass-through entity, recommend such a proceeding be initiated by a Federal awarding agency) e) Withhold further awards for the program f) Take other remedies that may be legally available 43

44 Contracting The non-federal entity must comply with the conditions attached to a grant in awarding Federally assisted contracts A non-federal entity must comply with the procurement requirements imposed by Federal law, executive orders and Federal regulations which control over non-federal authorities (such as local procurement standards) to the extent they conflict with Federal requirements Federal rules relate to more than reasonable cost issues but also seek furtherance of other objectives 44

45 Key Procurement Standards Procurement standards devote great attention to the methods of procurement that must be followed Geographic preferences are expressly prohibited There are different affirmative steps related to small and minority businesses, women s business enterprises and labor area surplus firms There are some additional documentation requirements concerning the choice of the method of procurement and contract type Conditions precedent for time and materials contracts 45

46 DHS OIG Audit Results 2014 OIG Common findings: Noncompetitive contracting practices Failure to include required contract provisions Failure to employ required procedures to ensure small/minority/women-owned firms are used Cost-plus-percentage-of-cost contracting Noncompliance with the Federal procurement requirements may comprise a material failure to comply with the term of the award 46

47 Disputes in Public Assistance Program Basic eligibility for assistance Applicant eligibility: tribe, local government, non-profit Scope of damage, cause of damage Repair vs. Replacement: 50% rule Relocation Reasonable cost and procurement Competitive bids/illegal forms of contract Change orders Failure to provide proper preferences: minorities, local preference After closeout: Deobligation of funds spent OIG audit Change in FEMA policy 47

48 Audits Audits by both federal and state agencies State: acting as sub-grantor to local governments, and responsible for proper use of funds (including state cost share) Federal: Office of Inspector General (OIG) Present preliminary report at OIG closeout meeting Opportunity to respond to findings Recommendation to FEMA program staff may recommend disallowance of funds already spent An OIG Audit cannot itself be appealed; a FEMA Deobligation based on OIG audit findings can be appealed 48

49 FEMA Public Assistance Program Appeals Before Hurricane Sandy Two levels of appeal First level appeal: to Regional Administrator Second level appeal: to Headquarters Assistant Administrator for Recovery FEMA encouraged Applicant to provide new information to FEMA at any time even at second appeal Based on theory that FEMA wants to provide every dollar of assistance that is eligible and is always willing to accept new information demonstrating eligibility 49

50 FEMA Public Assistance Program Appeals After Hurricane Sandy Still two levels of appeal First level appeal: to Regional Administrator After First Appeal: two options Second level appeal: to Headquarters Assistant Administrator for Recovery OR Arbitration is available for disputes of $1 million or more Based on Arbitrator Review of Record on First Appeal New FEMA Guidance on Appeals : no new information on second appeal Based on theory/philosophy that Applicant should provide FEMA all information in support of eligibility on first appeal Also assures that record for any SRIA arbitrations is complete 50

51 Administrative Appeals: What Can Be Appealed Applicants can appeal from any determination previously made related to an application for or the provision of Federal Assistance A Project Worksheet written for less than amount applicant contends is eligible A letter deobligating funds before they are spent A letter requesting return of funds already spent Applicants cannot appeal from: Oral Guidance Audits of the Inspector General but deobligations based on OIG audit findings can be appealed 51

52 Administrative Appeals: When to Appeal within 60 days from receipt of a notice of the action being appealed Do not miss regulatory appeal deadlines: Even if you are still informally discussing with FEMA staff Be sure you can document the date of receipt Lawyers love to win with technical arguments! 52

53 Administrative Appeals: How to Appeal Minimum Requirements In writing To Regional Director (First Appeal) Through the State With documented justification specifying: The monetary figure in dispute The provisions in federal law, regulation, or policy inconsistent with decision. 53

54 Administrative Appeals: How to Appeal (continued) Recommended Approach Appeal must understand and address rationale for denial of assistance Appeal must be understandable to non-expert Appeal must be self-contained: include copies of relevant documents to allow reader to confirm facts Do not assume FEMA can find the documents previously submitted Work with state to obtain any information describing judgments made by FEMA Appeal must include all information you might ever need to support your position no additional information permitted Second Appeals or arbitration based on Administrative Record 54

55 FEMA Request for Information Since FEMA says that new information can no longer be provided in Second Appeals: First appeal process is getting more formal If appeal is to be denied, FEMA issues a Request for Information Second Appeals to allow supplementation of record Usually allows 30 days for response Not completely clear how this works in situations where early denial is based on basic eligibility without review of actual proposed work, costs, etc. 55

56 FEMA Public Assistance Program Arbitration Hurricanes Katrina and Rita: to CBCA Deadline: 30 days from receipt of adverse decision De novo (new facts and argument can be presented) Project at issue must be greater than or equal to $500,000 SRIA Arbitrations: to Coast Guard ALJ Panel Deadline: Notice filed 15 days from receipt of First Appeal decision; then 30 days from receipt of administrative record On the record review arbitrary, capricious, abuse of discretion, contrary to law Amount in dispute $1,000,000 or more 56

57 Judicial Review Second Appeal decisions are final agency determinations and usually cannot be appealed. FEMA decisions NOT to provide funding; a FEMA decision to award any grant is discretionary FEMA decisions to DEOBLIGATE funding already awarded and spent Section 705 of Stafford Act (a) and (b) three-year statute of limitations (c) protection of state and local governments in certain circumstances. South Florida Water Management District v. FEMA (S.D. Fla. 2014) 57

58 Working with Congress on Disasters Do your homework Know the facts, issues, laws, regulations, etc. Know the member (e.g. committee assignments, seniority) This is NOT partisan You will know when to get help Start low and then work high Start with district staff and FEMA JFO before you go to D.C. Save your big guns for when you need them 58

59 TIPS For Dealing With FEMA #5 Be straightforward and ethical; develop a positive relationship. 59

60 TIPS For Dealing With FEMA (continued) #4 Understand FEMA eligibility code words. 60

61 TIPS For Dealing With FEMA (continued) #3 Don t give up on the first denial; FEMA may be wrong. 61

62 TIPS For Dealing With FEMA (continued) #2 Do not ignore procurement requirements. 62

63 TIPS For Dealing With FEMA (continued) #1 Document work, contracting procedures, FEMA promises. 63

64 Questions? Ernie Abbott Ted Lotchin