Guest Columns

Getting ready for the unthinkable

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Richard Cheng
Richard Cheng

Natural disasters and catastrophic events by definition arise unpredictably and consequently do not remain even in the back of people's minds on a consistent basis. Nevertheless, disaster readiness is something that all long-term care providers should seriously consider during their management or operation team meetings.

If you're not already having these discussions, it may not be too long before these talks are mandated, at least if LTC providers wish to continue participating in Medicare and Medicaid.

Late last year, the Centers for Medicare & Medicaid Services released a proposed rule that would add emergency preparedness requirements to the conditions of participation or conditions for coverage for a wide range of providers and suppliers, including LTC facilities.  To participate in the Medicare and Medicaid programs, LTC facilities are required to meet certain conditions outlined in 42 CFR § 483, Subpart B, Requirements for Long Term Care Facilities.  Skilled nursing facilities (SNFs) must be certified as meeting the requirements of section 1819(a) through (d) of the Social Security Act (Act). Nursing facilities for Medicaid purposes must be certified as meeting section 1919(a) through (d) of the Act. 

Currently, LTC facilities are specifically mandated to be prepared for emergencies by having detailed written plans and procedures to meet all potential emergencies and disasters, such as fire, severe weather and missing residents.[1]

In addition, LTC facilities are required to train all employees in emergency procedures when they begin to work in the facility, periodically review the procedures with existing staff, and carry out unannounced staff drills using those procedures.[2] 

However, CMS takes the position that these requirements fall short of ensuring adequate preparedness for more widespread disasters that may affect most or all of the other healthcare facilities in the area and may tax the ability of local, state and federal management officials to provide assistance. Because LTC facilities are not required to conduct a risk assessment or to have a plan, policies or procedures to ensure continuity of facility operations during emergencies, CMS has suggested that additional requirements directing LTC operators to have such policies, procedures and assessments in place are necessary.

For example, CMS has proposed a requirement that LTC facilities establish emergency plans utilizing an “all hazards”[3] approach, which in an emergency situation would include a directive to account for missing residents. 

Since many of the residents at LTC facilities have extended stays, the dynamics and duty between the resident and provider is unique, leading to CMS proposing a requirement to develop an emergency preparedness communication plan.

LTC providers must determine the means of providing information about the condition and location of the residents under their facility's care.  Specifically, CMS has proposed that LTC facilities should be required to determine what information in their emergency plan is appropriate to share with its residents and their families or representatives, along with the proper means by which that information is disseminated to the appropriate parties. 

Undoubtedly, this proposal by CMS is ambiguous because LTC providers are not provided with guidance on what type of information from the emergency plan should be shared, the manner or timing. Rather, they are given the flexibility to determine the information that is “most appropriate” to be shared. 

In addition to the aforementioned CMS proposed requirements, CMS has proposed that LTC facilities must store emergency fuel and associated equipment as required by the 2000 edition of the Life Safety Code of the National Fire Protection Association, along with testing requirements that meet the proposed frequency.

CMS also has shown a concern for individual residents' power needs. For example, some residents may have motorized wheelchairs or require a continuous positive airway pressure. As such, CMS has proposed that each LTC facility find solutions for its resident population and continuity of operations in its emergency plan. 

If these proposed regulations are codified, then LTC providers will be required to implement additional resources beyond what has been discussed above (e.g., changing your insurance policy to address any coverage issues that may later arise), hire the appropriate staff and apply more time to address these mandated actions. 

There are several ambiguities in these newly proposed regulations by CMS, and because resources vary greatly between one LTC provider to the next, such proposed regulations may or may not be feasible, despite CMS' good intentions. While the comment period has ended, long-term care should evaluate their emergency preparedness plans.

Richard Y. Cheng is an attorney at Anderson Kill, based in its Dallas office. Prior to his legal career, Richard worked as a licensed occupational therapist in Dallas. 

[1] 42 CFR § 483.75(m) (1)

[2] 42 CFR § 483.75(m) (2)

[3] Defined in Federal Register Vol. 78, No. 249

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