Mandatory Emergency Preparedness Programs for Medicare and Medicaid Providers: Soon to be a Condition of Participation

As a result of disasters (mistakes, natural, and terrorist-created), CMS recently published a proposed rule requiring any Medicare or Medicaid provider to comply with “emergency preparedness standards.”  While comments to the proposed rule will be accepted until February 25, we can expect the bulk of the proposed rules to be adopted.  Many providers already have the type of linkages with federal, regional, state, and local emergency preparedness systems the rules are meant to encourage, so much of what is in the proposed rule already may already be in place.  Nonetheless, the proposed rule sets forth specific requirements that 17 provider and supplier types must meet to participate in the Medicare and Medicaid programs.

These regulations will apply to the Alphabet soup of health care entities – hospitals, religious nonmedical health care institutions, ASCs, hospice houses, inpatient psychiatric treatment facilities, elderly care programs, transplant centers, LTC facilities, home health agencies, outpatient rehab centers, CAHs, community mental health centers, FQHCs, RHCs, ESRD facilities, and others.

The genesis of the rule is CMS’ determination “…that, currently, in the event of a disaster, health care providers and suppliers across the nation would not have the necessary emergency planning and preparation in place to adequately protect the health and safety of their patients. Underlying this problem is the pressing need for a more consistent regulatory approach that would ensure that providers and suppliers nationwide are required to plan for and respond to emergencies and disasters that directly impact patients, residents, clients, participants, and their communities. As we have learned from past events and disasters, the current regulatory patchwork of federal, state, and local laws and guidelines, combined with the various accrediting organization emergency preparedness standards, falls far short of what is needed to require that health care providers and suppliers be adequately prepared for a disaster.”  78 Federal Register 79084, December 27, 2013. 

The proposed rules are dense, and in targeting the 17 types of providers the rules contain specific requirements for each of the 17. Here are some brief examples of what the prosed rules will require for certain facilities.

Hospitals: Risk assessment utilizing an “all hazards approach” with consideration of (1) Identification of all business functions essential to the hospitals operations that should be continued during an emergency; (2) identification of all risks or emergencies that the hospital may reasonably expect to confront; (3) identification of all contingencies for which the hospital should plan; (4) consideration of the hospital’s location, including all locations where the hospital delivers patient care or services or has business operations; (5) assessment of the extent to which natural or man-made emergencies may cause the hospital to cease or limit operations; and (6) determination of whether arrangements with other hospitals, other health care providers or suppliers, or other entities might be needed to ensure that essential services could be provided during an emergency.

Home health agencies: Because HHAs are not presently subject to existing emergency preparedness requirements under HHA Medicare regulations, HHAs are now required to adopt emergency preparedness regulations that compare in some ways to those required of hospitals. Specifically, because HHAs provide health care in patients’ homes, CMS proposes that an HHA have policies and procedures that include plans for its patients during a natural or man-made disaster. HHAs must include individual emergency preparedness plans for each patient as part of the comprehensive patient assessment. Second, the experience of Hurricane Katrina has demonstrated to CMS that many medically compromised people were unable to escape their homes to seek safe shelter, therefore, CMS proposes to require an HHA to have policies and procedures to inform state and local emergency preparedness officials about HHA patients in need of evacuation from their residences at any time due to an emergency situation based on the patient’s medical and psychiatric condition and home environment. Such policies and procedures must be in accord with the HIPAA Privacy Regulations, as appropriate.

While CMS does admit in the proposed rule that it does not “propose how such notification would take place,” CMS expects that maintaining an accurate list of HHA patients would be necessary.

FQHCs: FQHCs’ emergency preparedness plans must address the type of services the facility has the capacity to provide in an emergency. CMS’ rule would require an evaluation of their ability to provide services based on, but not limited to, the facility’s size, available human and material resources, geographic location, and ability to coordinate with community resources.

Stay tuned for the final rule later in 2014.