By Kirsten K. Ullman, Managing Partner & Founder
Every state (as well as the federal government) has detailed rules and regulations regarding emergency preparedness. However, nothing could have prepared the operators of Florida’s nursing homes and assisted living facilities for the fury of Hurricane Irma in September of 2017. Multiple unexpected and costly lessons have been learned in the aftermath of this historic storm, with resultant litigation brought by the plaintiffs’ bar to cash in on the natural disaster. While this article makes specific references to Florida, the lessons learned have national implications involving a multitude of natural disasters.
Create Your Emergency Preparedness Plan
Operators of nursing homes and assisted living facilities must carefully create emergency preparedness plans that contemplate both natural and man-made disasters (i.e., hurricanes, tornadoes, earthquakes, fires). The Centers for Medicare & Medicaid Services (CMS) and the various states have specific rules and regulations that provide guidance regarding an emergency preparedness plan (EPP). While assisted living facilities may not be governed by the CMS, such facilities must be cognizant of state rules. Based on your jurisdiction, be sure to have your EPP approved by whatever governmental authority is mandated. In addition, it is good practice to review your EPP regularly to deter¬mine if any modifications are warranted.
Educate Your Residents and Their Families Regarding Your Emergency Preparedness Plan
Avoiding litigation starts with communicating with your residents and their families. Starting with the initial tour of a facility and with the admissions process, it is never too early to educate regarding your EPP. Residents and family members should be thoroughly informed regarding your EPP, and you should document the education with cor¬responding signatures to keep on file. It is recommended that periodic follow-up education should be contemplated. Further, if modifications or amendments to your EPP are implemented, the above procedures for education should also take place. Ignorance of your EPP should never be a viable plaintiff claim, and proper documentation of education about your EPP will bolster your defense.
Conduct Emergency Preparedness Drills
The CMS and state-based regulators require periodic emergency preparedness drills on at least an annual basis. Be sure to understand such requirements and abide by them. Again, it is important to document drills that are conducted, and consider videotaping them (with the proper consent from your residents). Also, educating your residents and families regarding the need for, and the timing of, such drills is important.
Prepare for an Impending Natural Disaster
While being able to respond properly to unexpected disasters cannot be overemphasized, it is crucial to prepare diligently for forecasted disasters (e.g., hurricanes). With the benefit of modern weather forecasting, senior living communities are able to prepare better when a natural disaster occurs. Communicating with residents and their families as a storm approaches is important, and of course, documenting the communication is recommended. Work in collaboration with the medical director and residents and families to go over your EPP and potential contingencies. The goal is to reduce the risks of any “surprise” scenarios. It will never be possible to anticipate all surprises, but operators should nevertheless have thoughtful discussions regarding potential issues that could develop.
Prepare for the Unexpected Natural Disaster
With global climate changes, we can continue to expect the unexpected. Disasters, such as earthquakes, tornadoes, flash floods, and fires, are presenting much more frequently on a national basis. It is these unexpected natural disasters that emphasize the importance of an EPP and your staff’s readiness to act without warning. When an unexpected natural disaster occurs, prepared senior living communities will rely on their EPP as well as the emergency drills and education of residents and families.
Collaborate with Third-Party Health-Care Providers
All residents of senior living communities have primary care physicians and their extenders. It is recommended that operators and their medical directors collaborate with third-party health-care providers regarding their EPP. In addition, there will be residents with hospice nurses and private-pay nurses and aides. These medical professionals will become additional eyes and ears of a facility in monitoring and assessing residents during a natural disaster.
Making Prudent Decisions in the Moment and Documenting the Good Care Provided
Know that your facility and caregivers will be scrutinized and judged by the actions taken during a natural disaster and in the aftermath. It is easy to be the Monday morning quarterback and criticize decisions that are made during the stress of a disaster. It is important to support your caregivers and recognize the tremendous stress that they will endure while providing care during a natural disaster. It is prudent to be extra diligent in documenting the care that is provided, keeping in mind that late entries will be the subject of unwarranted criticism by an uninformed media, the general public, and state officials in political protection mode.
Shelter in Place Versus Evacuation
If your facility is ordered to evacuate by the proper authorities, then, certainly, you should comply with the order. If you are not ordered to evacuate, then you must decide whether to shelter in place or evacuate. The general consensus in the senior living community is that sheltering in place is the safest option for most residents. The University of South Florida (USF) conducted a study in 2017 of nursing home residents who endured Hurricanes Katrina, Rita, Ike, and Gustav in 2004 and 2008 in Texas and Louisiana. Overall, the USF study concluded that due to the natural disasters, an extra 277 deaths occurred and 872 hospitalizations occurred during the storms (regardless of whether the studied nursing homes evacuated or sheltered in place). The study also concluded that those residents who were evacuated had substantial risks of increased death or hospitalization up to 90 days after the evacuation. See generally Daylina Miller, Study: Evacuating Nursing Home Patients Before a Storm Not Always Safest Option, WUSF Public Media (Oct. 12, 2017) .
The term “transfer trauma” was coined in the early 1960s. See generally C. Knight Aldrich & Ethel Mendkoff, Relocation of the Aged and Disabled: A Mortality Study, 11 J. Am. Geriatrics Soc’y 185 (1963). In that study, the authors concluded that “the death rate within one year of transfer to be 32%, with a substantial percentage occurring in the first three months after transfer.” Id. at 187. The bottom line is that residents of nursing homes and assisted living facilities are fragile and ill with multiple co-morbidities. A substantial percentage of residents suffer from varying degrees of dementia and take multiple medications. Structure and routine are important to sustaining residents’ quality of life. An evacuation of a facility causes enormous stress for the evacuees, and it is also stressful for the nurses and aides who are assisting with the evacuation. As such, the evacuation of a facility should only occur as a last resort.
Resultant Litigation (Despite the Best of Planning and Care)
Despite having an approved EPP and providing good care, bad outcomes are inevitable in natural disasters (whether sheltering in place or evacuating). A significant number of cases have been filed in Florida that contain allegations of storm-related negligence. New lawsuits continue to be filed. The claims range from violation of resident rights regarding nourishment and hydration to death.
Consequent Changes in the Law, Rules, and Regulations
In Florida, the governor directed the state’s regulatory agency to promulgate an emergency rule that mandated that every nursing home and assisted living facility in Florida have a working generator within 60 days with enough fuel capacity for 96 hours and with the capability of maintaining air temperatures between 71 and 81 degrees. That rule was challenged by nursing home and assisted living trade associations, and it was struck down (as no emergency existed at the time of the promulgation of the rule). The Florida Legislature in the 2018 session enacted a law that required all nursing homes and assisted living facilities to have working generators in place by January of 2019, with differing fuel capacities based on the size of the particular facility. No known rules address the regulation of humidity levels.
Also, being vigilant regarding appropriate ventilation of generators is a must. Interestingly, a bill was presented that would mandate that utility companies have to prioritize nursing homes and assisted living facilities for power restoration. However, that bill died in committee, reportedly due to pressure from the utility lobby. Hundreds of facilities in Florida lost power after Hurricane Irma for multiple days. Multiple stories were told of non-health-care-related properties having their power restored before nursing homes and assisted living facilities. Laws that prioritize the restoration of power for senior living communities should be enacted in every jurisdiction.
Finally, the CMS established a new emergency preparedness rule as of November of 2017 that required nursing homes to have generators. See generally 42 C.F.R. § 483.73. The CMS rule also requires emergency preparedness plans that must be updated annually and include conducting at least annual drills. The CMS rule mandates that nursing homes must identify persons at-risk, which, of course, could include virtually all nursing home residents.
No matter how prepared a facility may think that it is and no matter how many emergency drills have been successfully completed, Mother Nature can humble us all with her damage and destruction. Of course, every senior living facility should be diligent in its compliance with local, state, and federal regulations with regard to emergency preparedness (including emergency drills); however, it is critical to note that the unexpected will most assuredly occur. Do not expect to rely on your government to provide assistance when disaster strikes. Be prepared to be self-reliant. Be prepared to shelter in place while still having a viable evacuation plan. Due to the risks of transfer trauma to elderly residents, while evacuation is an option, it is an option with associated risks, as evidenced by the information discussed above and other studies.
In addition, collaborating with third-party health-care providers (i.e., treating physicians, physicians’ assistants, nurse practitioners, hospice nurses, paramedics) is recommended, and the decision to implement any evacuation should include resident health-care providers who direct the care of the patients who reside in the facilities. If emergency power to a facility fails in any way, focused efforts should be made to maintain a comfortable environment and to continue care in that environment if possible. While temperature of such facilities is the subject of federal regulation and many state regulations and rules, the effect of humidity on individual residents is unknown and variable depending on each resident’s specific, and usually many, medical conditions.
During a natural disaster, care of residents is certainly first and foremost. Documentation, from a practical and ethical standpoint, should be secondary. However, in the aftermath of a disaster, doing the right thing and focusing in real time on resident well-being and care, and documenting that care after the crisis has passed, with recognized and appropriate late entries, will be the subject of criticism and accusations. Expect to be judged (after the fact) for your decision making by families and residents, your regulatory agency and other political officials, the media, the public, social media, law enforcement, other health-care providers, and of course, by the plaintiffs’ bar.
As Published in DRI: The Voice, Volume 18, Issue 22 on March 27, 2019