US Nursing Homes not Meeting Industry Best Practices for Disaster Preparedness
How prepared for disaster are the nation’s nursing homes? The last thing nursing home operators should be worried about is exposure to legal liability because of failure to comply with industry best practices in disaster compliance, but many more facilities are at risk than one would have thought. The recently released 2012 Health and Human Services Office of the Inspector General report indicates serious deficiencies in nursing home planning and preparedness nationwide.
In 2006 the Department of Health and Human Services (DHHS) Office of the Inspector General (OIG) issued a report indicating that, while the majority of the nation’s nursing homes had written Emergency Operations Plans in place, many of the plans lacked provisions recommended by planning experts. In response, the Centers for Medicare & Medicaid Services (CMS) issued guidance checklists for emergency planning of health care facilities, long-term care (LTC) ombudsman programs, and State survey agencies (SA). Medicare and Medicaid have long required nursing homes to meet minimum standards, including having a written emergency plan, meeting minimum training thresholds, and developing contingency plans for facilities to qualify to receive federal funding for their patients.
The 2006 and 2012 reports found that the majority of nursing homes had written plans. This is no surprise as there are commercially available off the shelf plans that allow a facility administrator to simply fill in the blanks. So-called “checkbox” emergency plans are rarely successful, because the process of developing a plan is multi-tiered. True contingency planning means working off a set of potential scenarios, identifying and mitigating hazards, assessing and developing alternative methods of addressing risks, and then writing a plan that makes as much intuitive sense to employees and residents as possible. The plan itself, however, is not the finish line. An effective disaster program requires training and regular exercising for success.
The Centers for Medicare and Medicaid Services (CMS) responded to the shortfall found in the 2006 report by creating a checklist of best practices for nursing homes and assisted care facilities to follow in developing their preparedness plans. The CMS checklist was not enshrined as federal law, but was to serve as guidance for how plans should be crafted and the range of issues to which they should respond.
The 2012 OIG report indicates that serious deficiencies remain in the area of disaster preparedness in nursing homes across the United States. The largest shortfall was in the area of the CMS checklist itself – with many of the nursing homes only including about half of the relevant information from the CMS checklist. Nursing homes had unreliable transportation contracts, almost no collaboration with local emergency management officials and little planning for residents who developed health problems during the emergency. State and local agencies designed to support nursing homes had little contact with residents until after the disaster had passed and the contacts that did occur were usually centered on compliance-oriented concerns rather than on assisting in the provision of services.
Any competent disaster manager will tell you that contingency planning and training are critical to effective disaster response. Ultimately, the OIG has developed a set of recommendations to revise Federal law to set specific requirements for nursing home emergency operations plans and training and has encouraged the Administration on Aging to develop a set of model Policies and Procedures. Alone, this will not be enough.
There is no question that nursing home (or any business) needs specialized guidance on implementing an effective disaster and emergency planning. For example, conducting a thorough hazard analysis (which is a precursor to the design of a disaster plan) would be an immeasurably difficult and frustrating process without the assistance of a trained and experienced emergency manager; much less developing a robust risk assessment and developing a plan to prepare for and respond to hazards.
Experience and best practices have demonstrated time and again that the minimum critical elements of an effective disaster program:
1. Identifying hazards specific to the facility;
2. Assessing risks specific to the facility (these are not the same as the hazards),
3. Developing a robust emergency/disaster plan that addresses how to mitigate, prepare, respond and recover from hazards and risks specific to the facility;
4. Designing an employee-wide training program, with regular exercises to test the disaster program’s effectiveness;
5. Implementing a system of regular updates to prevent it from going obsolete.
Furthermore, because this industry is heavily regulated, an attorney who specializes in this type of compliance should “vet” the plan entirely. Putting aside the potential loss of life, failing to adequately prepare your facility to the Best Practices of the industry (i.e., at a minimum following the CMS guidance checklist, adequately training staff, exercising the plan and adequately preparing for contingencies) opens the facility up to legal liability for any harm that results from ill-planning. Simply meeting Title 22 standards will not be enough to insulate the facility or its parent companies from legal liability for failure to comply with industry Best Practices. Also, failure to meet new Title 22 standards, when they are drafted and signed into law, will expose the facility to K-tagging, administrative letters and potentially the loss of Federal and state funding sources for patients/clients.
In short, by failing to comply with industry best practices, operators of nursing homes and assisted care facilities not only put their residential clients at risk, but also put themselves and their livelihoods at risk.
While you should hire an experienced emergency manager to design and implement your disaster program and have it reviewed by an attorney for compliance, there are a few things a nursing home or long-term living facility can do immediately to increase their level of compliance and reduce the likelihood of your disaster program failing when disaster strikes:
1. Call every one of the emergency contact numbers to ensure the numbers are correct;
2. Examine your agreements for transporting and housing residents forced to evacuate your facility;
3. Conduct a fire drill. While this does not compensate for a complete disaster exercise, at least you can get an idea of emergency response awareness;
4. Schedule a training for your staff on the basic protocols of your plan;
5. If you have purchased a template, ensure there aren’t any blank spaces.
These are by no means plenary, however, they may at least provide a jump start for your disaster program. Your facility is a critical disaster partner, taking care of some of the most vulnerable individuals in the community. The national trend still points to facilities not remaining ready for disasters that may strike. Don’t be one of them. The amount you spend on constructing an effective disaster management program that is compliant with all the applicable laws could in the long run save money, prevent property damage, and save lives.
Jude Egan is California based attorney with a practice area in Title 22 compliance for nursing homes. Please contact him at: firstname.lastname@example.org www.judeeganlaw.com
Patrick Hardy is a Certified Emergency Manager® who works with nursing home and long-term living facilities. Please contact him at: email@example.com. www.hytropy.com