United States Senate Special Committee on Aging Hearing
September 20, 2017
Statement Submitted by the Center for Medicare Advocacy
The Center for Medicare Advocacy (Center) thanks the Senate Special Committee on Aging for holding the September 20th hearing examining “policies and procedures for sheltering in place, evacuating, and relocating our most vulnerable citizens before disaster strikes.”
The Center, established in 1986, is a national non-profit, non-partisan law organization that provides education, advocacy and assistance to help older people and people with disabilities obtain fair access to Medicare and quality health care. The Center is headquartered in Connecticut and Washington, DC, with offices throughout the country.
A main focus of the Center’s work is to promote access to quality care for people with long-term and chronic conditions and to advocate for the rights of nursing home residents. According to the 2015 Nursing Home Data Compendium issued by the Center for Medicare & Medicaid Services (CMS), in 2014, over 1.4 million people in the U.S. people resided in nursing homes. Many of these residents live in states that are prone to natural disasters, such as Florida, Louisiana, and Texas. Many residents also have some form of cognitive decline in addition to their physical limitations which can limit mobility. According to CMS, in 2014, about 25% of nursing home residents experienced at least moderate cognitive decline and about 37% had severe cognitive decline. These residents are particularly vulnerable and have special needs that must be considered in any evacuation or shelter-in-place procedures.
Nursing facilities have an obligation to ensure the well-being of their residents, some of our nation’s most vulnerable citizens. Disaster and emergency preparedness is certainly an essential responsibility for keeping residents safe.
The Federal Government has recognized this essential duty. For more than 25 years, federal regulations have required nursing facilities to prepare for disasters and emergencies, including “extreme weather.” Following Hurricane Katrina in 2005, other natural disasters, and 9/11, CMS convened many national public discussions about improving emergency preparedness. These discussions culminated in proposed rules, published in 2013, and then final rules, published October 2016, for each of 17 categories of health care providers. The comprehensive new regulations became effective November 15, 2016, with implementation required by November 15, 2017. CMS has a dedicated webpage focused on emergency preparedness, with templates, checklists, Frequently Asked Questions, and additional guidance documents for health care providers.
The new rules for nursing facilities are detailed and comprehensive. They require facilities to have disaster and emergency preparedness programs that include detailed provisions governing an emergency plan (developed, maintained, and updated annually); policies and procedures (addressing staff’s and residents’ subsistence needs, alternate sources of energy, safe evacuation and shelter in place, as appropriate); communications plan; training and testing; and emergency and standby power systems.
The problem with the federal regulations is their limited or non-enforcement. Comparatively few instances of noncompliance are cited as deficiencies, and even those deficiencies that are cited are not labeled as serious enough to lead to any enforcement.
Enforcement with the federal standards for disaster and emergency preparedness is even further limited. Although compliance is determined through the Life Safety Code survey, that survey primarily reviews facilities’ compliance with the relevant fire code. The only reference to emergency preparedness in the federal survey process is the requirement that, during the entrance conference, surveyors ask the facility for a copy of its disaster plan.
When surveyors do not regularly determine whether facilities have an adequate disaster and emergency preparedness program in place, facilities are rarely cited for noncompliance with the federal requirements. If facilities are not cited with noncompliance, there can be no enforcement.
Essentially, federal rules address disaster and emergency preparedness (and the new rules are far more detailed and comprehensive than ever), but, without meaningful enforcement of the rules, facility compliance is essentially voluntary.
The Center urges CMS to require surveyors, annually, to determine facilities’ compliance with disaster and emergency preparedness requirements and to impose meaningful sanctions against facilities that are not in compliance with these standards. The HHS Inspector General has just revised a planned audit of Medicaid Life Safety Code reviews to include review of facilities’ emergency preparedness.
The Center’s second key concern is policymakers’ deference to the nursing home industry on issues of resident health and safety. Following the deaths of eight residents at the Rehabilitation Center at Hollywood Hills, the Miami Herald reported that twelve years earlier, in 2005, following Hurricane Wilma, a Florida legislator wanted to introduce a bill to require nursing facilities to have generators that could maintain air conditioning. The legislator, Representative Dan Gelber, told the Miami Herald last week that the industry opposed the legislation. No legislation was passed.
Now Florida Governor Rick Scott has announced new rules that, effective immediately, require nursing facilities and assisted living facilities to have generators that can maintain comfortable temperatures for at least 96 hours, if facilities experience loss of power. The rules are similar to the legislation that was opposed by the nursing home industry and others and defeated in Florida 12 years ago. Clearly, federal and state legislators must ensure that all relevant voices are heard on issues of important public policy – residents, their advocates, and the public at large – not just the voices of industry.
Implementation and enforcement of the new federal rules for disaster and emergency preparedness have never been more critical. The tragic deaths of residents during Hurricane Irma at the Rehabilitation Center at Hollywood Hills in Florida has once again turned national attention to the special challenges older people face in times of disaster. We need to take all steps possible to ensure that such tragedies do not occur again.
Toby S. Edelman
Senior Policy Attorney
September 19, 2017
Federal regulations for nursing facilities for disaster and emergency preparedness
- Original regulations
42 C.F.R. §483.75(m) stated, in full:
(m) Disaster and emergency preparedness.
(1) The facility must have detailed written plans and procedures to meet all potential emergencies and disasters, such as fire, severe weather, and missing residents.
(2) The facility must 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.
- Revised regulations (
§ 483.73 Emergency preparedness, state, in full:
The LTC facility must comply with all applicable Federal, State and local emergency preparedness requirements. The LTC facility must establish and maintain an emergency preparedness program that meets the requirements of this section. The emergency preparedness program must include, but not be limited to, the following elements:
(1) Be based on and include a documented, facility-based and community-based risk assessment, utilizing an all-hazards approach, including missing residents.
(2) Include strategies for addressing emergency events identified by the risk assessment.
(3) Address resident population, including, but not limited to, persons at-risk; the type of services the LTC facility has the ability to provide in an emergency; and continuity of operations, including delegations of authority and succession plans.
(4) Include a process for cooperation and collaboration with local, tribal, regional, State, or Federal emergency preparedness officials' efforts to maintain an integrated response during a disaster or emergency situation, including documentation of the LTC facility's efforts to contact such officials and, when applicable, of its participation in collaborative and cooperative planning efforts.
(b)Policies and procedures. The LTC facility must develop and implement emergency preparedness policies and procedures, based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, and the communication plan at paragraph (c) of this section. The policies and procedures must be reviewed and updated at least annually. At a minimum, the policies and procedures must address the following:
(1) The provision of subsistence needs for staff and residents, whether they evacuate or shelter in place, include, but are not limited to the following:
(i) Food, water, medical, and pharmaceutical supplies.
(ii) Alternate sources of energy to maintain –
(A) Temperatures to protect resident health and safety and for the safe and sanitary storage of provisions;
(B) Emergency lighting;
(C) Fire detection, extinguishing, and alarm systems; and
(D) Sewage and waste disposal.
(2) A system to track the location of on-duty staff and sheltered residents in the LTC facility's care during and after an emergency. If on-duty staff and sheltered residents are relocated during the emergency, the LTC facility must document the specific name and location of the receiving facility or other location.
(3) Safe evacuation from the LTC facility, which includes consideration of care and treatment needs of evacuees; staff responsibilities; transportation; identification of evacuation location(s); and primary and alternate means of communication with external sources of assistance.
(4) A means to shelter in place for residents, staff, and volunteers who remain in the LTC facility.
(5) A system of medical documentation that preserves resident information, protects confidentiality of resident information, and secures and maintains the availability of records.
(6) The use of volunteers in an emergency or other emergency staffing strategies, including the process and role for integration of State or Federally designated health care professionals to address surge needs during an emergency.
(7) The development of arrangements with other LTC facilities and other providers to receive residents in the event of limitations or cessation of operations to maintain the continuity of services to LTC residents.
(8) The role of the LTC facility under a waiver declared by the Secretary, in accordance with section 1135 of the Act, in the provision of care and treatment at an alternate care site identified by emergency management officials.
(c)Communication plan. The LTC facility must develop and maintain an emergency preparedness communication plan that complies with Federal, State, and local laws and must be reviewed and updated at least annually. The communication plan must include all of the following:
(1) Names and contact information for the following:
(ii) Entities providing services under arrangement.
(iii) Residents' physicians.
(iv) Other LTC facilities.
(2) Contact information for the following:
(i) Federal, State, tribal, regional, or local emergency preparedness staff.
(ii) The State Licensing and Certification Agency.
(iii) The Office of the State Long-Term Care Ombudsman.
(iv) Other sources of assistance.
(3) Primary and alternate means for communicating with the following:
(i) LTC facility's staff.
(ii) Federal, State, tribal, regional, or local emergency management agencies.
(4) A method for sharing information and medical documentation for residents under the LTC facility's care, as necessary, with other health care providers to maintain the continuity of care.
(5) A means, in the event of an evacuation, to release resident information as permitted under 45 CFR 164.510(b)(1)(ii).
(6) A means of providing information about the general condition and location of residents under the facility's care as permitted under 45 CFR 164.510(b)(4).
(7) A means of providing information about the LTC facility's occupancy, needs, and its ability to provide assistance, to the authority having jurisdiction or the Incident Command Center, or designee.
(d)Training and testing. The LTC facility must develop and maintain an emergency preparedness training and testing program that is based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, policies and procedures at paragraph (b) of this section, and the communication plan at paragraph (c) of this section. The training and testing program must be reviewed and updated at least annually.
(1)Training program. The LTC facility must do all of the following:
(i) Initial training in emergency preparedness policies and procedures to all new and existing staff, individuals providing services under arrangement, and volunteers, consistent with their expected roles.
(ii) Provide emergency preparedness training at least annually.
(iii) Maintain documentation of the training.
(iv) Demonstrate staff knowledge of emergency procedures.
(2)Testing. The LTC facility must conduct exercises to test the emergency plan at least annually, including unannounced staff drills using the emergency procedures. The LTC facility must do the following:
(i) Participate in a full-scale exercise that is community-based or when a community-based exercise is not accessible, an individual, facility-based. If the LTC facility experiences an actual natural or man-made emergency that requires activation of the emergency plan, the LTC facility is exempt from engaging in a community-based or individual, facility-based full-scale exercise for 1 year following the onset of the actual event.
(ii) Conduct an additional exercise that may include, but is not limited to the following:
(A) A second full-scale exercise that is community-based or individual, facility-based.
(B) A tabletop exercise that includes a group discussion led by a facilitator, using a narrated, clinically-relevant emergency scenario, and a set of problem statements, directed messages, or prepared questions designed to challenge an emergency plan.
(1)Emergency generator location. The generator must be located in accordance with the location requirements found in the Health Care Facilities Code (NFPA 99 and Tentative Interim Amendments TIA 12-2, TIA 12-3, TIA 12-4, TIA 12-5, and TIA 12-6), Life Safety Code (NFPA 101 and Tentative Interim Amendments TIA 12-1, TIA 12-2, TIA 12-3, and TIA 12-4), and NFPA 110, when a new structure is built or when an existing structure or building is renovated.
(2)Emergency generator inspection and testing. The LTC facility must implement the emergency power system inspection, testing, and maintenance requirements found in the Health Care Facilities Code, NFPA 110, and Life Safety Code.
(3)Emergency generator fuel. LTC facilities that maintain an onsite fuel source to power emergency generators must have a plan for how it will keep emergency power systems operational during the emergency, unless it evacuates.
(f)Integrated healthcare systems. If a LTC facility is part of a healthcare system consisting of multiple separately certified healthcare facilities that elects to have a unified and integrated emergency preparedness program, the LTC facility may choose to participate in the healthcare system's coordinated emergency preparedness program. If elected, the unified and integrated emergency preparedness program must do all of the following:
(1) Demonstrate that each separately certified facility within the system actively participated in the development of the unified and integrated emergency preparedness program.
(3) Demonstrate that each separately certified facility is capable of actively using the unified and integrated emergency preparedness program and is in compliance with the program.
(4) Include a unified and integrated emergency plan that meets the requirements of paragraphs (a)(2), (3), and (4) of this section. The unified and integrated emergency plan must also be based on and include –
(i) A documented community-based risk assessment, utilizing an all-hazards approach.
(ii) A documented individual facility-based risk assessment for each separately certified facility within the health system, utilizing an all-hazards approach.
(5) Include integrated policies and procedures that meet the requirements set forth in paragraph (b) of this section, a coordinated communication plan and training and testing programs that meet the requirements of paragraphs (c) and (d) of this section, respectively.
(g) The standards incorporated by reference in this section are approved for incorporation by reference by the Director of the Office of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 1 CFR part 51. You may obtain the material from the sources listed below. You may inspect a copy at the CMS Information Resource Center, 7500 Security Boulevard, Baltimore, MD or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. If any changes in this edition of the Code are incorporated by reference, CMS will publish a document in the Federal Register to announce the changes.
(1) National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02169, www.nfpa.org, 1.617.770.3000.
(i) NFPA 99, Health Care Facilities Code 2012 edition, issued August 11, 2011.
(ii) Technical interim amendment (TIA) 12-2 to NFPA 99, issued August 11, 2011.
(iii) TIA 12-3 to NFPA 99, issued August 9, 2012.
(iv) TIA 12-4 to NFPA 99, issued March 7, 2013.
(v) TIA 12-5 to NFPA 99, issued August 1, 2013.
(vi) TIA 12-6 to NFPA 99, issued March 3, 2014.
(vii) NFPA 101, Life Safety Code, 2012 edition, issued August 11, 2011.
(viii) TIA 12-1 to NFPA 101, issued August 11, 2011.
(ix) TIA 12-2 to NFPA 101, issued October 30, 2012.
(x) TIA 12-3 to NFPA 101, issued October 22, 2013.
(xi) TIA 12-4 to NFPA 101, issued October 22, 2013.
(xii) NFPA 110, Standard for Emergency and Standby Power Systems, 2010 edition, including TIAs to chapter 7, issued August 6, 2009.
 CMS, Nursing Home Data Compendium 2015 Edition, page 2, https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/nursinghomedatacompendium_508-2015.pdf.
 Id. 159, Figure 3.11.
 The regulations are reproduced in full in the Attachment.
 78 Fed. Reg. 79082 (Dec. 27, 2013).
 81 Fed. Reg. 63859 (Sep. 16, 2016), https://www.gpo.gov/fdsys/pkg/FR-2016-09-16/pdf/2016-21404.pdf 81 Fed. Reg. 80594 (Nov. 16, 2016) (correction).
 The new regulations are reproduced in full in the Attachment.
 Jordan Rau, Kaiser Health News, “Many Nursing Homes Aren’t Prepared For Even Basic Emergencies,” NPR (Sep. 19, 2017), http://www.npr.org/sections/health-shots/2017/09/19/552042095/many-nursing-homes-arent-prepared-for-even-basic-emergencies.
 State Operations Manual, Appendix I, Survey Procedures for Life Safety Code Surveys, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107ap_i_lsc.pdf.
 Carol Marbin Miller and Mary Ellen Klass, “After Wilma, bills were pushed to ensure nursing homes had emergency AC. They were killed,” Miami Herald (Sep. 14, 2017), http://www.miamiherald.com/latest-news/article173365916.html
 Sheri Fink and Matt Stevens, “Nursing Home Deaths Prompt New Rules by Florida Governor,” The New York Times (Sep. 16, 2017), https://www.nytimes.com/2017/09/16/us/nursing-homes-florida-scott.html.