The Centers for Medicare & Medicaid Services (CMS) has issued final rules regarding emergency preparedness. The final rule was published in the Federal Register on September 16, 2016, and is effective on November 15, 2016. Agencies are, however, not required to comply until November 15, 2017.
In a Summary of Major Provisions published along with the final regulations, CMS states: “We are issuing emergency preparedness requirements that will be consistent and enforceable for all affected Medicare and Medicaid providers and suppliers…”
CMS also states in the commentary to the final rule that the rules apply to providers who care for patients who are homebound or receiving services at home. In other words, the requirements do not apply only to Medicare certified home health agencies who provide services to homebound patients.
In fact, it seems reasonable to apply the requirements to private duty home care agencies, since services by these types of agencies are often at a greater frequency than intermittent services provided by Medicare certified agencies. Unlike services provided under the home health benefit of the Medicare Program, such services may be provided 24 hours per day, 7 days per week.
Based upon the above, all Medicaid providers may be required to comply with the final rule. Consequently, private duty home care agencies that are not Medicare certified, but receive payments from Medicaid Programs, including Medicaid waiver programs and managed Medicaid plans, may be subject to these requirements.
The final rule includes specific requirements for “home health agencies,” which, according to the rule, is not limited to Medicare certified home health agencies.
Here are the key requirements:
Agencies must comply with all applicable Federal, State and local emergency preparedness requirements.
Agencies must establish and maintain emergency preparedness programs that must be reviewed and updated at least annually. Agencies’ emergency preparedness plans must be based on and include a documented provider and community-based risk assessment using an “all-hazards” approach and must:
- Include strategies to address emergent events identified by risk assessments
- Address the types of services agencies can provide in emergencies and continuity of operations, including delegations of authority and succession plans
- Include processes for cooperation and collaboration with local, tribal, regional, State, or Federal officials in emergency situations, including documentation of agencies’ efforts to contact such officials and, if applicable, participation in collaborative and cooperative planning activities
Agencies must develop and implement policies and procedures governing emergency preparedness based on emergency plans that are reviewed and updated at least annually. At a minimum, policies and procedures must address the following:
- Plans for agencies’ patients during a natural or man-made disaster, including individual plans for each patient that must be included as part of comprehensive assessments
- Procedures to inform State and local emergency preparedness officials about agency patients in need of evacuation from their residences at any time due to emergency situations based on patients’ medical and psychiatric conditions and home environments
- Procedures to use to follow up with on-duty staff and patients to determine needed services if there are interruptions in service during or due to emergencies. Agencies must inform State and local officials of any on-duty staff or patients that they are unable to contact.
- Establishment of a system of medical documentation that preserves patients’ information, protects confidentiality of patients’ information and secures and maintains availability of records
- Use of volunteers in emergencies or other emergency staffing strategies, including a process for integration of state and Federally designated health care professionals to address surge needs during emergencies
Agencies must develop and maintain emergency preparedness communication plans that comply with Federal, State and local laws that are updated annually and include:
- Names and contact information for staff, entities that provide services under arrangement, patients’ physicians, and volunteers
- Contact information for Federal, State, tribal, regional and local emergency preparedness staff
- Other sources of assistance, including primary and alternate means of communication with agencies’ employees and Federal, State, tribal, regional and local emergency management agencies
- Methods for sharing information and medical documentation for patients under agencies’ care, as necessary, with other health care providers in order to maintain continuity of care
- Processes to release patients’ information during evacuations and to provide information about the general condition and location of patients under agencies’ care consistent with all applicable requirements
- Processes to provide information about agencies’ needs and abilities to provide assistance to authorities having jurisdiction, Incident Command Centers or designees
Agencies must develop and maintain emergency preparedness training and testing programs that are based on emergency plans, risk assessments, policies and procedures and communication plans required by the final regulations that are reviewed at least annually, including the following:
- Initial training in emergency preparedness policies and procedures for all new and existing agency employees, individuals providing services under arrangement and volunteers, consistent with expected roles
- Demonstrations of staff knowledge of emergency procedures
- Provision of emergency preparedness training at least annually and maintenance of documentation of the training
- Conduct of exercises to test emergency plans at least annually, including participation in full-scale exercises that are at least provider based and preferably community based
- Conduct of additional exercises that may include, but are not limited to, a second full-scale exercise that is community or provider based, a tabletop exercise that includes group discussions led by facilitators using narrated, clinically-relevant emergency scenarios and sets of problem statements, directed messages or prepared questions designed to challenge emergency plans
- Analysis and documentation of agencies’ response to all drills, tabletop exercises and emergency events, including revisions to agencies’ emergency plans as needed
Based upon the final rule it is unclear how private duty agencies’ compliance with these requirements will be monitored and enforced. These activities are likely to vary from state-to-state.
Private duty agencies have become accustomed to operating in a relatively unregulated industry, especially when compared to Medicare certified home health agencies. The future is likely to bring more regulation of this industry, including with regard to emergency preparedness.
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Elizabeth E. Hogue, Esq. Office: (877) 871-4062 Fax: (877) 871-9739 Twitter: @HogueHomecare ElizabethHogue@ElizabethHogue.net