CMS Emergency Preparedness Rule – Final Rule

As I’m writing, communities in the Southeast and Texas are braving through the recovery from the devastation of hurricanes Harvey and Irma. Although the full impact of these events is truly unknown, we do know that for millions across the country, life will never be the same. There is a particularly devastating impact on many older adults in long-term care facilities in preparing for and dealing with hurricanes and other disasters. In Florida and beyond, the country is experiencing the outcome of the challenges long-term care and assisted living providers face in emergencies. Our industry continues to promote many approaches to planning, response, and recovery from all sorts of emergencies. The first priority for health care providers and suppliers is to protect the health and safety of their residents and patients.

We need only look back over time to identify a multitude of natural and manmade disasters. As a result of the Sept. 11, 2001, terrorist attacks, anthrax attacks, hurricanes, flooding in the Midwest, pandemics and other threats and catastrophes, our nation's health security and readiness for emergencies have been on the national agenda.

As we know, Phase II implementation of the Final Rule set Nov. 16, 2017, includes emergency preparedness requirements that establish a comprehensive, consistent, flexible and dynamic regulatory approach to emergency preparedness and response that incorporates the lessons learned from the past, combined with the proven best practices of the present. As CMS states, “…central to this approach is to develop and guide emergency preparedness and response within the framework of our national health care system. To this end, these requirements also encourage providers and suppliers to coordinate their preparedness.”

On Sept. 16, 2016, CMS published the final rule Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers. The new Emergency Management regulations are set to go into effect Nov. 16, 2017.

Following is an overview, training resources and focus on emergency communication. The four provisions for 17 provider and supplier types are:


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1. Risk Assessment and Planning:

Per CMS, for this provision:

  • Develop an emergency plan based on a risk assessment.
  • Perform risk assessment using an “all-hazards” approach, focusing on capacities and capabilities.
  • Update the emergency plan at least annually.

    An all-hazards approach is an integrated approach to emergency preparedness planning that focuses on capacities and capabilities that are critical to preparedness for a full spectrum of emergencies or disasters, including internal emergencies and a manmade emergency (or both) or natural disaster. This approach is specific to the location of the provider or supplier and considers the particular type of hazards most likely to occur in their areas. These may include, but are not limited to, care-related emergencies, equipment and power failures, interruptions in communications – including cyber-attacks – loss of a portion or all of a facility, and interruptions in the normal supply of essentials such as water and food.

2. Policies and Procedures:

An overview of this provision includes:

  • Develop and implement policies and procedures based on the emergency plan and risk assessment.
  • Policies and procedures must address a range of issues including subsistence needs, evacuation plans, procedures for sheltering in place, and tracking patients and staff during an emergency
  • Review and update policies and procedures at least once per year.

3. Communication Plan

The communication plan will be discussed in more detail in this article space in October. CMS identifies the keys to this provision as:

  • Develop a communication plan that complies with both federal and state laws. 
  • Coordinate patient care within the facility, across health care providers, and with state and local public health departments and emergency management systems.
  • Review and update the plan annually. 

4. Training and Testing:

An overview of the training and testing program is:

  • Develop and maintain training and testing programs, including initial training in policies and procedures.
  • Conduct drills and exercises to test the emergency plan.
  • Demonstrate knowledge of emergency procedures and provide training at least annually.

Facilities are expected to meet all training and testing requirements by the implementation date of Nov. 15, 2017. Participation in a full-scale exercise that is community-based or, when a community-based exercise is not accessible, an individual, facility-based exercise.

Conduct an additional exercise that may include, but is not limited to the following:

  • A second full-scale exercise that is individual, facility-based.
  • 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.

    When discussing the terms “all-hazards approach” and facility-based risk assessments, CMS considers the term “facility-based” to mean that the emergency preparedness program is specific to the facility. Facility-based includes, but is not limited to, hazards specific to a facility based on the geographic location; patient/resident/client population; facility type and potential surrounding community assets (i.e. rural area versus a large metropolitan area).

    Full-Scale Exercise: A full-scale exercise is a multi-agency, multi-jurisdictional, multi-discipline exercise involving functional (for example, joint field office, emergency operation centers, etc.) and ‘‘boots on the ground’’ response (for example, firefighters de-contaminating mock victims).

    Table-top Exercise (TTX): A table-top exercise is a group discussion led by a facilitator, using narrated, clinically relevant emergency scenario and a set of problem statements, directed messages, or prepared questions designed to challenge an emergency plan. It involves key personnel discussing simulated scenarios, including computer-simulated exercises, in an informal setting. A TTX can be used to assess plans, policies, and procedures.

    On June 2, 2017, CMS released an advanced copy of the interpretive guidelines and survey procedures that will be incorporated into the SOM under Appendix Z and applies to all 17 provider and supplier types. Since the Conditions of Participation (CoPs), Conditions for Coverage (CfCs) and requirements apply across providers and suppliers and only vary slightly, CMS has compiled the requirements under one appendix. Check it out at https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertEmergPrep/Downloads/Advanced-Copy-SOM-Appendix-Z-EP-IGs.pdf. In October, this article will also address tag E-0006 and E-0007 applying to long-term care facilities.

    CMS also recently issued information on training and testing requirements for Emergency Preparedness. Check them out here: https://surveyortraining.cms.hhs.gov.

    Now that the interpretive guidelines have been released, it’s time to complete the training and testing exercises and a comprehensive plan. Next month, we’ll discuss the specifics set forth in the interpretative guidelines as well as a communications plan. Please feel free to contact me for guidance as your emergency prepared programs advance to completion. We can expect “Tag E” to be a focus for CMS on Nov. 17, 2017, and beyond.


    Join me and my firm and co-hosts Cowan & Lemon LLP, Horne Rota Moos LP and Kaufman Borgheest & Ryan LP for our annual conference held in Houston April 4-5, 2018. Stay tuned for more information on our program! Email me at radelman@hatlawfirm.com for updates.
Rebecca Adelman