College of Law > About > Centers & Institutes > Mary and Michael Jaharis Health Law Institute > E-Pulse Newsletter > STRATEGIC PERSPECTIVES: Emergency preparedness in the wake of historic hurricanes
Sheila Lynch-Afryl, J.D., M.A. / 3/29/2018 / Twitter / Facebook
Hurricanes, one after another, have pummeled the southern United States and Puerto Rico, causing widespread devastation. In August 2017, Harvey made landfall as a Category 4 hurricane with winds of 130 miles per hour and rainfalls up to 51 inches, leading to catastrophic flooding in southeast Texas and Louisiana. In September, Irma broke records as it spent three days as a Category 5 hurricane and caused destruction in Florida and other states. Most recently, Maria wreaked havoc on Puerto Rico. A historic number of strong hurricanes battering the U.S. in 2017 has had an inevitable effect on health care providers and suppliers. With the implementation date of CMS’ emergency preparedness regulations right around the corner, how have providers and suppliers fared through the natural disasters, and how effective have those regulations been?
Final Rule on Emergency Preparedness
On September 16, 2016, CMS issued a Final rule (82 FR 63860), proposed in December 2013 (78 FR 79082, December 27, 2013), to be implemented by November 15, 2017 (see CMS steps up emergency preparedness requirements for providers, September 16, 2016; Proposed rule would create emergency preparedness requirements for Medicare, Medicaid, December 27, 2013). It established national emergency preparedness requirements for 17 Medicare- and Medicaid-participating provider and suppliers types to plan adequately for both natural and man-made disasters.
In the preamble to the Final rule, CMS noted that the United States has been challenged over the past several years by several natural and manmade disasters, including the September 11, 2001, terrorist attacks, the catastrophic hurricanes in the Gulf Coast states in 2005, flooding in the Midwestern states in 2008, the 2009 H1N1 influenza pandemic, and Hurricane Sandy in 2012. Indeed, approximately 215 people died in nursing homes and hospitals during Hurricane Katrina in 2005.
Emergency preparedness program. The Final rule requires providers and suppliers to establish and maintain an emergency preparedness program including an emergency preparedness plan, policies and procedures, a communication plan, and training and testing of the emergency preparedness program. Overall, the requirements are consistent between providers and suppliers, but some requirements are unique to a particular provider type. If a provider is part of a health care system consisting of multiple separately certified health care facilities that elects to have a unified and integrated emergency preparedness program, the provider may choose to participate in the system’s coordinated program.
Plan. Providers are required to develop and maintain an emergency preparedness plan that is reviewed and updated at least annually. The plan must:
Communication plan. The provider is required to develop and maintain an emergency preparedness communication plan that complies with federal, state, and local laws and is reviewed and updated at least annually. The communication plan must include:
Policies and procedures. The provider should develop and implement emergency preparedness policies and procedures that address, at a minimum:
How Have Hospitals Responded?
The hurricanes have affected health care providers in different ways. In Florida, at least 435 health centers, including 30 hospitals, 61 nursing homes, and 280 assisted-living facilities, evacuated in preparation for Irma. Ben Taub Hospital was one of about 20 hospitals in Houston and nearby counties that moved at least a portion of their patients in response to Harvey, while MD Anderson closed for outpatient services but did not evacuate.
Ram Ramadoss, Vice President – CRP Privacy and Information Security and EHR Oversight of Catholic Health Initiatives (CHI), which has facilities in Texas, said that divisionally all CHI acute-care facilities in Texas met the emergency preparedness Final rule through its accreditation process with the Joint Commission (TJC)/Det Norske Veritas (DNV) and its participation in health care coalitions through the Hospital Preparedness Program (HPP). According to the HHS Office of the Assistant Secretary for Preparedness and Response, the HPP provides leadership and funding through grants and cooperative agreements to states, territories, and eligible municipalities to improve surge capacity and enhance community and hospital preparedness for public health emergencies. This funding is used to support programs to help strengthen public health emergency preparedness with enhanced planning, increasing integration, and improving infrastructure.
Ramadoss said that in the wake of the hurricanes, health care facilities and local and state agencies are conducting “After Action Reports,” which are a consolidation of information gathered during the testing of the emergency operations plan either through an exercise or real event. The report provides feedback to participating entities and governing agencies in the achievement of the objectives and overall capabilities. Information gleaned from this process identifies and guides future improvement actions in the improvement plan process.
CHI annually conducts a comprehensive hazard analysis and reviews the types of natural disasters that can affect its facilities and the likely consequences. One challenge is the identification of the resources necessary to respond if a disaster occurs and whether the resources will be accessible locally or regionally. Typically, said Ramadoss, organizations use basic mutual aid agreements as a means to overcome local shortfalls. The challenge with natural disasters is they affect numerous localities simultaneously, placing a strain on the overall system. “When these resources are strained we reach out to the state for resources from unaffected jurisdictions within the state,” Ramadoss said.
Deaths of Nursing Home Residents in Florida
Eleven nursing home residents died in the heat after the hurricane at the Rehabilitation Center at Hollywood Hills in Hollywood, Florida. On September 10, 2017, the nursing home’s air conditioning stopped working, and employees contacted the electrical power provider and placed fans in the halls and portable air coolers throughout the facility. Residents began suffering respiratory or cardiac distress and 11 ultimately died. The nursing home is located across the street from a hospital, which did not lose power. The nursing home, however, claims that the governor and state agencies ignored repeated requests for help. Representative Frederica Wilson (D-Fla) stated that she warned officials that dozens of nursing homes were without air conditioning well before the first Hollywood Hills resident died.
The emergency management final rule requires nursing homes and certain other providers to have “alternate sources of energy” to maintain temperatures to protect resident health and safety and for the safe and sanitary storage of provisions (see 42 C.F.R. Sec. 483.73(b)(1)(ii)). Some commenters to the proposed rule sought clarification on the power requirements for temperatures. In the Final rule, CMS responded, “We have not required minimums for these types of requirements because they would vary greatly between facilities.” Each facility is required to conduct a facility-based and community-based assessment that addresses, among other things, its resident population; from that assessment, each facility should be able to identify what it needs for its resident population, including its temperature needs for both its resident population and its necessary provisions.
In interpretative guidelines, CMS said, “This specific standard does not require facilities to have or install generators or any other specific type of energy source…. Facilities must establish policies and procedures that determine how required heating and cooling of their facility will be maintained during an emergency situation, as necessary, if there were a loss of the primary power source.” For example, a long-term care facility may decide to relocate residents to a part of the facility, such as a dining or activities room, where the facility can maintain the proper temperature requirements rather than the maintaining temperature within the entire facility.
Some have suggested that this incident will highlight the need for the emergency management regulations to include a requirement that providers such as nursing homes use emergency generators to maintain comfortable temperatures.
House Energy and Commerce Committee Chairman Greg Walden (R-Ore) intimated that the committee might investigate nursing home oversight. On September 16, 2017, Florida Governor Rick Scott issued an emergency rule, based on standards already in place for Florida hospitals, requiring nursing homes to have generators and the appropriate amount of fuel to sustain operations and maintain comfortable temperatures for at least 96 hours following a power outage. He also terminated the nursing home as a Medicaid provider, and local police have initiated a criminal investigation.
What’s Next for Providers?
Relief from reporting and other requirements is available for certain providers and suppliers affected by the hurricanes. Under Soc. Sec. Act Sec. 1135, when the President declares a disaster or emergency and the HHS Secretary declares a public health emergency under Sec. 319 of the Public Health Service Act, the Secretary may temporarily waive or modify certain Medicare, Medicaid, and Children’s Health Insurance Program (CHIP) requirements to ensure that sufficient health items and services are available in the emergency area and providers who provide such services in good faith can be reimbursed and exempt from sanctions. In August, for example, CMS issued a waiver for 32 Texas counties and five Louisiana parishes that grants providers an exception to reporting requirements for Medicare quality reporting and value-based purchasing programs (see They've suffered enough; Hurricane Harvey facilities get reporting relief, September 6, 2017).
In addition, on September 28, 2017, CMS established special enrollment periods for Medicare and the exchanges to support individuals affected by Harvey, Irma, and Maria. On September 21, 2017, House Ways and Means Committee Ranking Member Richard Neal (D-Mass) and House Energy and Commerce Committee Ranking Member Frank Pallone, Jr. (D-NJ) sent a letter asking then-HHS Secretary, Tom Price, to extend the open enrollment periods for Medicare Advantage and the exchanges through January 2018 and flexibility with Medicare Part B and Part D enrollment to help residents in states affected by the hurricanes.
While the relaxed requirements will surely help many providers, it is unclear how effective CMS’ emergency preparedness regulations have been, or will be. Only time will tell whether these regulations will be modified in response to catastrophes like Harvey and Irma.
© 2017 CCH Incorporated. All rights reserved. The foregoing article is reprinted with permission. This article was published in Wolters Kluwer Health Law Daily on October 3, 2017. For more information about subscribing to this publication, please visit www.dailyreportingsuite.com.