Wednesday, September 13, 2017

The Critical Importance of A.C. for Emergency Preparedness

A couple of years ago, I was present when my father's dementia care facility -- a licensed assisted living community -- was doing a test of part of their emergency preparedness plan.  The staged "emergency" for that particular test was "loss of air-conditioning," which for most of the year in Arizona and other locations in the south and southwest is a serious concern.  With climate change, heat and air-conditioning systems are going to be even more critical in the future.

I was impressed that even without back-up generators, the facility had both a short-term and long-range plan. The long-term plan required staged evacuation to other locations.  Of course, to be effective, any evacuation would depend on the "other" locations having working power systems, something that can't be certain in a large scale weather or similar emergency.  

Sadly, as reported in the New York Times on September 13, following the damage caused by Hurricane Irma, there were several deaths at a long-term care facility near the coast in southeastern Florida.  The rapidly developing story suggests that as many as eight deaths were tied to loss of air-conditioning, although not a complete loss of power to the facility. It is too early to know all of the relevant facts.  But, what about the law?  The NYT article notes that:  

Florida requires nursing homes to have procedures to ensure emergency power in a disaster as well as food, water, staffing and 72 hours of supplies. A new federal rule, which comes into effect in November, adds that whatever the alternative source of energy is, it must be capable of maintaining temperatures that protect residents’ health and safety.

Does the federal regulation mandate emergency sources of air-conditioning? Although the highlighted language in the NYT article suggests the new federal rule "comes into effect" in November of this year, my read of the regulation says the effective date was November 15, 2016 -- in other words, last year.

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9/14/17 Correction to above paragraph:  It was bothering me that I saw more than one news article describing the Emergency Preparedness rule as not taking effect until November of this year.  The "effective date" of the Rule is clearly November 15, 2016 -- but, the New York Times is correct -- Long Term Care facilities have "until" November 15, 2017 to "implement" their preparedness plans, including any plan for maintaining safe temperatures.   The implementation deadline was in a previous version of the rule, not the version of the rule actually made "effective" on November 15, 2016.  Another lesson for me in the need for careful reading of regulations!

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Perhaps more importantly, here's the language of the federal regulation, at 42 C.F.R Section 483.73, governing emergency preparedness at LTC facilities:

The LTC facility must develop and implement emergency preparedness policies and procedures, based on the emergency plan set forth in paragraph (a) of this section, risk assessment at paragraph (a)(1) of this section, and the communication plan at paragraph (c) of this section. The policies and procedures must be reviewed and updated at least annually. At a minimum, the policies and procedures must address the following:
 
(1) The provision of subsistence needs for staff and residents, whether they evacuate or shelter in place, include, but are not limited to the following:
    (i) Food, water, medical, and pharmaceutical supplies.
    (ii) Alternate sources of energy to maintain
        (A) Temperatures to protect resident health and safety and for the safe and sanitary storage of provisions;     
        (B) Emergency lighting;
        (C) Fire detection, extinguishing, and alarm systems; and
        (D) Sewage and waste disposal.
Does this regulation require alternative sources of air-conditioning or heat -- as necessary to "protect resident health and safety" -- or does it merely require a "policy and procedure"?  I suspect this language might be a legal issue in any post-Irma proceedings.  
 
This is still a developing story, with state authorities conducting investigations.  For more, see this NPR story

http://lawprofessors.typepad.com/elder_law/2017/09/the-critical-importance-of-ac-for-emergency-preparedness.html

Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink

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