Obviously, they are all natural disasters that climate scientists believe will increase in severity and intensity in the coming years. And they are all events that nursing homes and assisted living facilities (and all Medicare/Medicaid certified health care providers) are legally required to prepare for in order to protect their residents and patients. More pointedly, though, they are all events which the U.S. Senate Finance Committee’s Minority Staff (Minority Staff) believes are not presently adequately addressed by nursing homes, assisted living facilities, or the U.S. Centers for Medicare and Medicaid Services (CMS). The Minority Staff made this clear in a blistering report issued on November 2, 2018, entitled Sheltering in Danger.

Examining the events of hurricanes Harvey and Irma in 2017 and Florence and Michael in 2018, the Minority Staff found that nursing homes and assisted living facilities failed to protect their residents and patients in a number of ways. They did not have adequate decision tools or procedures to decide whether to shelter in place during a storm or to evacuate prior to the storm’s arrival, or to reassess an initial decision as storm conditions changed. If the decision was to shelter in place, they did not have adequate provisions, infrastructure or staff to do that safely. They did not have effective lines of communication with local emergency services or within their own organizations. They failed to involve their medical directors or attending physicians to assess residents’ and patients’ clinical conditions as they sheltered in place during increasingly difficult conditions. If they had contracts to transport residents and patients during an evacuation, the contracts were inadequate or even unenforceable. In the eyes of the Minority Staff, well-intentioned facility staff were left to improvise due to the lack of a careful and thorough emergency preparedness plan, with resulting loss of life, injury and suffering for residents and patients.

The nursing homes and assisted living facilities were not the only ones that the Minority Staff blamed for what it described as a chaotic response to these hurricanes. It also blamed CMS for not having clear and comprehensive regulations—even though new emergency preparedness regulations went into effect in 2017. It particularly criticized CMS for allegedly failing to clarify a nursing home’s responsibility to maintain comfortable temperatures during a long-term power outage. The Minority Staff claimed that CMS ignored scientific evidence regarding appropriate temperature control in light of the elderly population’s heightened sensitivity to the combination of high temperatures and humidity. It also blamed state regulators for failing to actively review facilities’ emergency preparedness plans and local utilities for failing to properly prioritize nursing homes for power restoration. Even weather forecasters came within the Minority Staff’s crosshairs. The Minority Staff called for enhanced weather information to nursing homes and assisted living facilities to better enable them to decide whether to shelter in place or evacuate in advance of a storm.

The New York Times published an article on November 2, 2018, discussing the Minority Staff report. The Times reports that CMS stands by its 2017 emergency preparedness regulations, and asserts that the problems identified by the Minority Staff were the result of facility non-compliance rather than regulatory deficiency. Notably, criminal charges, as well as multiple administrative citations, were leveled against a Florida nursing home for its actions during hurricane Irma which allegedly caused the death of twelve residents due to heat-related illness when the facility’s air conditioning system failed for six days in sweltering heat.

Regardless of whether the Minority Staff or CMS is correct regarding the root cause of the deaths, injury and suffering during the 2017 and 2018 hurricanes, one likely conclusion is that emergency preparedness will be on the radar screen of federal and state regulators and consumers. Certified nursing facilities and assisted living facilities that participate in Medicaid home and community-based services may see heightened CMS and state scrutiny of their emergency preparedness plans, and consumers will hold facilities accountable for disaster responses. Now is the time to prepare before the next disaster strikes.