On December 27, 2013, CMS posted its proposed rule regarding emergency preparedness for Medicare and Medicaid participating providers (the “Proposed Rule”). See 78 Fed. Reg. 79082, here. The Proposed Rule would amend the Medicare conditions of participation to require particular entities—including hospitals, ambulatory surgical centers, long term care facilities, and a whole host of other entities—to create, implement, and reinforce emergency preparedness policies, strategies, and training. Unfortunately, providers may find that their current emergency preparedness plan does not meet all of the criteria set forth in the Proposed Rule.

CMS identified four core elements central to an effective and comprehensive framework of emergency preparedness. The core elements are (1) risk assessment and planning, which requires entities to develop, maintain, and update annually an emergency preparedness plan that utilizes an “all-hazards approach”; (2) policies and procedures that are based upon the risk assessment and communication plan required by the Proposed Rule; (3) a communication plan; and (4) annual training and testing.

The “all-hazards approach” that is the backbone of the Proposed Rule is not defined in the regulations, though the preamble offers the following:

An all-hazards approach is an integrated approach to emergency preparedness that focuses on capacities and capabilities that are critical to preparedness for a full spectrum of emergencies or disasters. This approach is specific to the location of the provider and supplier considering the particular types of hazards which may most likely occur in their area.

The thrust of this approach is that providers should prepare for all possible scenarios, but not waste time on events that could not possibly occur in a given location.

Providers subject to the Proposed Rule should evaluate their current emergency preparedness plans to assess whether or not they cover all of the requirements found in the Proposed Rule. In most cases, modifications will be needed. The reason for this is that providers typically model their emergency plans after one set of standards, such as the Joint Commission Standards, while the Proposed Rule is an amalgamation of emergency preparedness standards developed by multiple third parties, including other federal agencies, The Joint Commission, the American Osteopathic Association (currently written for Critical Access Hospitals only), and numerous others. Additionally, CMS used information gleaned from written reports, articles, and studies on emergency responsiveness of health care providers (e.g. OIG and GAO reports) to identify other necessary safeguards.

Based upon the above, and our initial comparisons to actual emergency preparedness plans, we suspect that providers may find that their plans lack elements or details required by the Proposed Rule. Providers should carefully review the Proposed Rule and their current plan, and begin planning for the future. Public comments to the Proposed Rule may be submitted until 5 p.m. on February 25th.