NEW DISASTER PLANNING REGULATIONS AND REQUIREMENTS: ARE YOU PREPARED? By: Minton P. Mayer Wiseman Ashworth Law Group Nashville Memphis 5050 Poplar, 24 th Floor Memphis, TN 38157 Telephone 901 312 1641 Mobile 901 240 6079 Fax 615 254 1878 minton@wisemanashworth.com www.wisemanashworth.com and Michael Nolen President and Chief Administrative Officer Emergency Mobile Health Care 6972 Appling Farms Parkway, Suite 110 Memphis, Tennessee 38133 http://www.emhcambulance.com/ 1. Introduction: Following recent natural and man-made disasters such as 9/11, Hurricane Katrina, and other floods and fires, the federal government has increased its focus on emergency preparedness. Federal regulations 42 C.F.R. 483.75(m) require that Medicare- and Medicaid-certified nursing homes have written emergency plans and provide employees with emergency preparedness training. In a 2012 report, the Office of Inspector General (OIG) reviewed state survey data for emergency preparedness in nursing homes. Although most long-term care facilities had emergency plans, the majority of the plans were wholly inadequate. Half of the sampled plans contained only 50 percent of the CMS-recommended checklist items, according to the OIG s Gaps Continue to Exist in Nursing Home Emergency Preparedness and Response During Disasters: 2007-2010. On February 28, 2014, CMS issued Survey and Certification Letter S&C-14-12, a revised emergency preparedness checklist. In addition, as discussed in the regulatory section below, CMS issued a proposed rule that 17 different providers and suppliers must meet to participate in the Medicare and Medicaid programs. Medicare and Medicaid Programs;
Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers, 78 Fed. Reg. 79081 (Dec. 27, 2013). The proposed rule addresses the following gaps that CMS believes exist in the current regulations: (1) communication to coordinate with other systems of care with local jurisdictions; (2) contingency planning; and (3) personnel training. 2. Regulatory Compliance: CMS issued a proposed rule that 17 different providers and suppliers must meet to participate in the Medicare and Medicaid programs. Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers, 78 Fed. Reg. 79081 (Dec. 27, 2013). The proposed rule addresses the following gaps that CMS believes exist in the current regulations: (1) communication to coordinate with other systems of care with local jurisdictions; (2) contingency planning; and (3) personnel training. The proposed rule for disaster planning would establish national emergency preparedness requirements for Medicare- and Medicaid-participating providers and suppliers to ensure that they adequately plan for both natural and man-made disasters, and coordinate with federal, state, tribal, regional, and local emergency preparedness systems. It would also ensure that these providers and suppliers are adequately prepared to meet the needs of patients, residents, clients, and participants during disasters and emergency situations. Because long-term care facilities are unique among other health care providers as many of the residents can be expected to have long-term or extended stays, the proposed rule also requires these facilities to develop an emergency preparedness communication plan. The emergency preparedness communication plan would include a means of providing information about the general condition and location of residents under the facility s care. Finally, the proposed rule for long-term care facilities also requires emergency plans to utilize an all-hazards approach, which, in an emergency situation, would include a directive to account for missing residents. In light of the new checklist and CMS recent focus on emergency preparedness, health care providers, including nursing homes, should evaluate their emergency preparedness plans. 3. Disaster Planning Adverse events and disasters affecting long-term care facilities can occur with little or no warning. The scope, severity and duration of the emergency may not only affect the individual facility but can affect the infrastructure and resources of an entire community or region. Disaster planning requires long-term care facilities to proactively manage these events by planning in advance for adverse events by implementing comprehensive plans, protocols, 2
policies and procedures creating a culture of preparedness. A facility that has embraced a culture of preparedness including a comprehensive emergency operation plan (EOP), trained staff, equipment and supplies is required to ensure a successful outcome. CMS has prepared some initial tools for facilities to utilize including an Emergency Preparedness Checklist. (A copy is attached in your materials). 4. Human Reaction to Crisis or Disaster: It is commonly assumed that during a disaster most people will panic. However more often than not the opposite occurs and people freeze in response to a dangerous situation. They are simply overwhelmed by the severity of the event and are unable to comprehend the scope of the emergency to take appropriate action. It is essential for long-term care facilities to implement comprehensive instructions fostering a culture of preparedness to help ensure an appropriate response to an unexpected adverse event or disaster. A phenomenon known as optimistic bias takes place in communities that are threatened by catastrophic events. An example of optimistic bias is the unsupported belief that a person living in a known earthquake zone will be okay even if a catastrophic earthquake occurs. The individual person believes it can t happen to me and it won t happen here. In the long-term care setting, objective data confirms that reliable training regimens use the best outcomes. Regular facility training for a disaster ensured facility will be ready for any emergency. A disaster plan implemented without training and testing will be less effective to regular staff turnover and changes in the building. Developing an overall culture of preparedness, response and recovery through robust training, drills, exercises and other proactive programs is most effective way to manage potential disaster or adverse event. The methods to prepare an effective program discussed in further detail below. 5. Keys to preparing and implementing an effective disaster management plan: 1. Hazard Vulnerability Assessment (HVA), 2. National Incident Management System (NIMS), 3. All Hazards Emergency Management, 4. Nursing Home Incident Command System (NHICS) 5. Regulatory Compliance and 6. Planning to for the disaster recovery process. 6. Hazard Vulnerability Assessment (HVA): Long-term care facility should prepare a Hazard Vulnerability Assessment to consider what threats and vulnerabilities could impact residents and family members. Most disaster plans are incomplete because they only focus on obvious threats and perils within the community where industry. Facilities in the South have a strong focus on severe weather events but providers in seismically active regions of the state near the New Madrid Fault line such as Memphis, Covington, Dyersburg and Union City may focus on weather and earthquakes. 3
Similarly, facilities in coastal regions have a tendency to concentrate on hurricanes and tropical storms while long-term care providers in large metropolitan areas focus on the threat of terrorism. Long-term care facilities should perform a Hazard Vulnerability Assessment to determine whether there are any other potential hazards, threats or perils inside and outside of the healthcare facility. The HVA should be initially conducted and reviewed on at least an annual basis to identify existing and new conditions that could adversely affect the operations of long-term care facility. Proximity to potential terror targets, dams, ports, waterways, hazardous materials plants, schools, shopping malls, bank branches, pipelines, railroad crossings, airports and a long list of other types of potential perils should be considered. Effective HVA tools have been developed and are utilized to identify internal and external risks. The factors to consider include the probability of occurrence plus the impact the occurrence will have on the facility. This can be measured by considering the potential injuries, deaths and/or property damage exposure as you determine the unmitigated risk. Subtracting levels of mitigation and preparedness determines the mitigated risk that a specific event or condition can have on a facility. Links to HVA resources and tools: - Arizona Health Care Association- Disaster Ready- HVA http://www.azhca.org/disaster-ready/resources-2/ - California Association of Health Facilities- Disaster Planning Guide- HVA Tools http://www.cahfdisasterprep.com/preparednesstopics/allhazardresourcesguides/disaster PlanningGuide.aspx The HVA process allows a long-term care facility to implement proactive management instead of reacting in the time of disaster. It also helps to reduce costs and effectively allocate resources so you have planned for the most likely events and have effective mitigation strategies in the event of a disaster. 7. National Incident Management System (NIMS): Long-term care providers of all types must have a basic understanding of the standardized system of emergency management commonly used by emergency responders, acute healthcare providers, governmental agencies, non-governmental organizations (NGO) and the private sector to manage routine emergencies and major disasters. The National Incident Management System was signed into law in February 2003. This created a comprehensive, national approach to incident management by federal, state, and local responders. It also makes NIMS compliance a requirement for any entity receiving Federal funds beginning in fiscal year 2007. 4
This integrated system establishes a uniform set of processes, protocols, and procedures that all emergency responders, at every level of government, NGO and private sector will use to conduct response actions. There are six (6) components in NIMS: Command and Management Preparedness Resource Management Communications and Information Management Supporting Technologies Ongoing Management and Maintenance NIMS is the primary reason why long-term care providers must implement standards that will allow it to operate with the rest of the community in the event of a disaster. This requires the adoption of the emergency management methods known as All Hazards Emergency Management and the Incident Command System (ICS). 8. All Hazards Emergency Management: The concept of All Hazards Emergency Management means that all long-term care providers must be prepared to address all potential emergencies that could potentially impact a facility. While it is literally impossible to project the parameters of every type of emergency situation, the concept of All Hazards Disaster Planning and Response is based on the principle that regardless of the root cause of the event, it will be managed in an organized manner with a standardized emergency management model like the Incident Command System (ICS). All Hazards Emergency Management focuses on these main points: Communications Resources and Assets Safety and Security Staff Responsibilities Utilities Patient Clinical and Support Activities The all hazards approach emphasizes facility preparedness in each of these areas. The key is to have a specific plan not to identify each and every type of emergency. 5
The all hazards approach also utilizes a standardized system of command and control to manage the event. In the long-term care facility setting, this system is the Nursing Home Incident Command System (NHICS). 9. Nursing Home Incident Command System (NHICS): Originally adapted from the Hospital Incident Command System or HICS, the Nursing Home Incident Command System (NHICS) is a standardized emergency management model slowly starting to find its way into facilities. The system utilizes the same titles, positions, language and concepts as all other variations of ICS. All associated forms and tools utilized in NHICS are organized by the same numbering system as all FEMA-related ICS documents. Elements of the system including Job Action Sheets (JAS) have been customized for use and applicability in the long-term care sector of healthcare. It is essential for long-term providers to learn and integrate NHICS into their operations. NHICS will help promote an interoperable environment where long-term care providers can manage an incident in a standardized, all hazards manner and communicate with first responders including fire, law enforcement, EMS, emergency management, hospitals, and any other organization involved with total incident management. 10. Planning for Disaster Recovery: Long-term care facilities often prepare for disasters but do not prepare for how to recover from a disaster. Recovery starts in the planning and response phases of emergency management. Failure to integrate robust disaster recovery protocols into a facility s Emergency Operation Plan puts the provider at a greater risk of a prolonged recovery that will disrupt patients, residents, employees and the overall operation. Without adequate recovery and business continuity plans, significant service interruptions can be anticipated and financial losses may increase. Providers that fail to plan and respond in a manner that will promote effective recovery are placed at a significant disadvantage and are at risk of losing census and suffering damage to their reputation. If a facility does not get back up and running promptly following an adverse event, it is often assumed that it was not prepared at all even if the facility had disaster planning, mitigation and response protocols in place. 11. Risk Exposure Long-term care providers are required from a legal, regulatory and compliance standpoint to be prepared for disasters. Facilities that do not have adequate preparedness, mitigation, response and recovery protocols established face significant risk exposure. 6