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Cecilia Franco and her husband Miguel ran out of time last September when their nursing home’s air conditioning malfunctioned in the wake of Hurricane Irma. The elderly couple, in their 90s, died from the sweltering heat that followed. Twelve others who had been living at the Rehabilitation Center at Hollywood Hills in Florida were also gone within the month.
As hurricane gusts and historic flooding forced their way across a swath of the Southeast in 2017, the frailest Americans were sometimes left with little defense against nature. The failures of the system led to rallying cries and federal and state legislative pushes still in the works as this year’s hurricane season begins.
Nursing homes are reviewing and updating their processes to comply with emergency planning regulations that took effect last November, according to the Washington-based American Health Care Association. Some outside the industry worry, though, that weaknesses still exist—and could put seniors at risk once again. They point to a lack of bite in federal oversight and to limited resources challenging change in institutional care.
There were 1.4 million seniors living in nursing homes in 2014, according to the Centers for Disease Control and Prevention. The Centers for Medicare & Medicaid Services found more than 1,850 incidents of nursing homes failing to have written emergency evacuation plans between 2011 and 2018, and 3,770 nursing home violations of requirements to inspect power generators weekly and test them monthly, according to a record review of CMS’s Nursing Home Compare safety deficiency data. The federal tool details health and fire safety inspection, staffing, and quality information on nursing homes certified by Medicare and Medicaid.
“It’s unfortunate that these things happen and usually in America, we learn our lesson and we change course,” Richard Mollot, executive director of the Long Term Care Community Coalition, told Bloomberg Law. “But when it comes to nursing home residents, unfortunately, and assisted living facilities’ residents even more so, the change too often is not forthcoming, and when it does come, it’s weak and poorly enforced.”
LTCCC is a nonprofit in New York advocating for quality of life for seniors in institutional care.
Albert Levin, a personal injury attorney representing the Franco family in Miami, told Bloomberg Law the relatives have suffered—and they “really want to make sure nobody else has to go through what they went through.”
Sen. Marco Rubio (R-Fla.), who was involved in inquiries about the nursing home incident in his home state, introduced a bill last September to create an advisory committee to consult on improvements for American senior care during natural disasters.
The Hollywood Hills deaths were “horrifically unacceptable,” he told Bloomberg Law in a statement. “It should not take a natural disaster for systematic flaws to come to light.”
“As we continue into this year’s hurricane season, I remain committed to making the critical improvements necessary to prevent similar tragedies from happening,” Rubio said.
The CMS rolled out a new “all-hazards,” four-pronged approach for nursing home disaster preparation in 2016 that senior care facilities were subject to following the worst of last year’s storms.
Federal Medicare and Medicaid officials mandated a facility and community provider risk assessment taking into consideration a provider’s regional susceptibility to different types of emergencies. Providers then had to develop protocols to be reviewed and updated annually for handling potential threats. That extended to the ability to provide care but also equipment and power failures, building or supply loss, and communication flow breaches such as cyberattacks.
Nursing homes were also required to develop a communications plan in case of emergency across providers, staff, state and local public health departments, and emergency management agencies, according to the CMS rule (RIN:0938-AO91). And they have to train employees and test and update their emergency plans annually.
AHCA members, which include skilled nursing and assisted living facilities, are currently going through exercises and “drills that allow them to build robust plans to respond during an event,” Erin Prendergast, senior manager of quality improvement for the group, said.
Members are also reviewing their vulnerabilities and procedures this year, she added: “The ultimate goal of the regulation was to really just build coordination among providers and their local and state agencies and their community partners,” Prendergast told Bloomberg Law.
“The new regulations will help, and member centers are prepared.”
In the Sunshine State, where the Francos lived and died, alarmed state lawmakers forced through new standards requiring facilities to be able to keep the temperature below 81 degrees for at least 96 hours, at least in one centralized location such as a safe room.
Nursing homes are now “generally much more prepared” for 2018’s hurricane season than they were a year ago, creating plans for emergency power and evacuation, Bruce Lamb, head of Gunster’s health-care practice in Tampa, Fla., told Bloomberg Law.
Agency for Health Care Administration Secretary Justin Senior said Florida is “proud” to be “one of the first states in the country to require this critical safety measure.”
“Families must have the assurance that the facilities responsible for caring for their loved ones have the resources needed to be fully prepared ahead of any potential storms,” he said in a recent statement. These life-saving rules put safeguards in place and now, more than ever, facilities are prepared for an event that could knock out power.
Further, the Florida official said the agency would do everything it could to “strictly” hold senior care facilities to the letter of the law, such as fines for noncompliance.
All Florida nursing homes are in compliance with the rules, though just 165 of the 684 providers have implemented a plan and the rest have requested extensions, according to the AHCA’s live tally July 19. Fewer assisted living facilities are in compliance at nearly 73 percent (or 2,260 providers).
Will all of these steps be enough to ensure providers are truly ready for another barrage of hurricanes? In short, no, according to the LTCCC’s Mollot.
The guidelines are helpful and say the right things, but they don’t have the same backbone to prop up compliance as a law, he said.
The federal government hasn’t implemented any robust standards changes or safeguards, and there’s “no reason” to believe the same flaws don’t exist this time around, he said.
Providers often don’t voluntarily implement new guidelines, especially as the industry has become more corporatized, and states and the CMS don’t enforce them stringently, he said. “You have these guidance documents that come out saying they want to see this, but it kind of ends there.”
They might balk at the cost or difficulty in rolling out stricter storm standards, Mollot noted.
“Don’t take in residents if you cannot care for them safely,” he said. “That should be fundamental.”
Levin, who added that the lawsuit against the Hollywood Hills facility is still ongoing, said Florida’s new electricity rules were a “step in the right direction but certainly not far enough to ensure this type of tragedy will never happen again.”
Lawmakers need “to take a much harder look than the brief glance made after the storm to tighten up the regulations concerning what is required of these types of facilities to ensure the safety of the patients,” he told Bloomberg Law.
But that all comes back to the bottom line, the attorney lamented: “Resources are tight, and this is a very difficult area to force compliance 100 percent of the time.”
Skilled nursing providers operate on “razor thin” total margins of 0.7 percent, according to the AHCA, citing figures from a congressional Medicare advisory group.
Special interest groups on behalf of nursing home owners push back to avoid putting more money into problems if they don’t have to, Levin said.
“I think there should be forced compliance, and if they don’t comply, they should shut them down,” he said.
Florida isn’t the only state prone to hurricanes and other forces of nature.
Harvey wreaked havoc on Texas during what turned out to be the most costly year of weather disasters in U.S. history, according to the National Oceanic and Atmospheric Administration.
A striking viral image rose out of the flood waters: a nursing home under water with residents still stuck inside, wading through the sludge in the small town of Dickinson.
The laws and regulations governing nursing home weather emergencies in the Lone Star State might not be the same as, say, New Jersey. The intensity of standards and coordination across nursing homes, counties, cities, and states can vary dramatically, attorney Lamb told Bloomberg Law.
Skilled nursing facilities and assisted living facilities are also subject to different rules. It’s been harder for the latter, many of which are “mom and pop” operations, to create “sophisticated” plans in advance of hurricanes because of resources, he said.
And Mollot, advocating for seniors in nursing homes, cautioned that federal safety regulations for assisted living facilities are basically nonexistent, while state regulations are “much more lax.” “I don’t have a lot of faith in that, unfortunately, at all,” he said.
That leaves a patchwork system.
“The next step beyond the emergency power would be to have more uniform emergency plan requirements,” Lamb said, “because nobody is really looking over those types of plans.”
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