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February 11, 2021

Emergency Preparedness and Response in a Pandemic

This Briefing is brought to you by AHLA’s Academic Medical Centers and Teaching Hospitals Practice Group and the Public Health System Affinity Group of the Hospitals and Health Systems Practice Group.
  • February 11, 2021
  • Amy Bolian
  • Delphine O’Rourke , Goodwin Procter LLP

In Spring of 2019, we prepared an article addressing the top five things that hospital and health system counsel need to know about how to prepare and respond to disasters, which we identified as: (1) decisions to shelter-in-place, evacuate, and repopulate; (2) protecting and managing the health care client’s supply chain and access to essential goods and services; (3) managing employee and workforce issues; (4) securing revenue and reestablishing solvency; and (5) managing information and media relations. We noted at that time that there were regular reminders that disaster situations pose special challenges for health care providers and, by extension, for their legal advisers, and we hosted a webinar series addressing the top five concerns, with the intention that it would be an enduring resource.

We were correct. Less than a year later, the COVID-19 global pandemic layered a previously unfathomable set of complications on disaster response by hospitals and other health care providers, and “force majeure” clauses—a somewhat niche topic covered in our publication and webinar series—became the stuff of daily discussion. Although the “top five” considerations remained top of list, the complexity of considerations in each category was magnified by the national and global public health emergency, and we set out to do a follow-up to our prior article and webinars. This publication, which is a culmination of work with a variety of experts representing hospitals, health systems, and state hospital associations, explores some of the challenging questions related to responding to disasters in the grip of a pandemic and underlying public health emergency. It follows a webinar on the same topic.

We wish to thank Delphine O’Rourke for being interviewed for this piece.

Andrea Ferrari, Chair, Public Health System Affinity Group
Emily Grey, Chair, Hospitals and Health Systems Practice Group
Amy Bolian, Vice Chair of Publishing, Academic Medical Centers and Teaching Hospitals Practice Group

Part I – Questions for Rural, Community, and Safety Net Hospitals

Question: How do emergency preparedness plans address issues of physically housing and providing medical care for patients affected by natural disasters or other emergencies? 

Delphine O’Rourke: The health and safety of patients is front and center in any emergency preparedness plan for a facility that provides medical care. Trauma response, emergency room triage, process for rapid inpatient admissions, transfer protocols, helicopter evacuation, and transport within a facility are some of the many areas that must be addressed, documented, and trained for in an emergency response plan. Additionally, the potential that patients would not be able to return to their homes once medical treatment is no longer necessary also needs to be planned for. The Puerto Rican experience of Hurricane Irma’s devastation is illustrative of the planning challenges when patients, providers, staff, and visitors are unable to return to their homes because their homes were ruined, unsafe, or inaccessible by vehicle. Hundreds of people lived in the hospitals for weeks if not months and the hospitals had to respond by buying cots, and addressing food and water needs of non-patients while still treating patients in the midst of power outages and other debilitating consequences of the natural disasters. 

Question: How difficult is it to adhere to COVID-related policies, such as social distancing, when physical space and other resources are already limited?

Delphine O’Rourke: Comprehensive and robust COVID-19 related policies and practices are critically important to the health of patients, staff, and visitors in connection with the COVID pandemic, as well as to respond to compounded emergencies. We have been experiencing an increase in compounded emergencies in the U.S. and worldwide from the recent fires in California to the most recent hurricane season in the Southeast and Caribbean. Any time you have emergency compounding, the response is more resource intensive and a challenge to physical space. Unlike a natural disaster such as a flood, for example, where your emergency response plan will include the rapid transport to large numbers of people to a safer physical location, a COVID response cannot include transportation of large numbers of people in buses, shuttles, or other means that require individuals to be in close proximity. Air quality, in the case of widespread fires, will also be a significant hurdle for patients already struggling with the pulmonary impact of COVID. It is therefore very difficult to effectuate a rapid response—particularly when it requires physical movement—even if a health system has significant resources. For rural hospitals or other facilities that are struggling to survive, an effective response to compounded emergencies may be especially difficult without significant advance planning or swift creativity.

Question: In these settings, community members generally do not have a choice of where to receive aid during an emergency situation. In areas where there are diverse racial and ethnic populations and only one health care provider, how do emergency preparedness plans ensure that measures taken and staff are responding in a culturally appropriate way?

Delphine O’Rourke: Emergency plans should include steps for a hospital or other provider to meet its language translation requirements and hopefully to ensure that social workers, case workers, and/or other professionals trained in cultural sensitivity are staffed to address the particular circumstances of each patient’s medical needs. The reality, however, is that in situations of extreme trauma where emergency medical care is needed by large numbers of patients, such as a mass casualty, the emphasis will be on delivering the life-saving care as soon as possible The demand for interpretation services and strain on resources that those situations create may tax a provider’s ability to provide depth of culturally-tailored care.

Question: Supply chain issues can significantly affect emergency preparedness plans for an institution of any size and in any location. This is especially true for rural, safety net, and sole community hospitals where a break in the supply chain can exacerbate an emergency or disaster in ways that may not be as great in more populated areas where supplies can be delivered faster or even borrowed from other institutions. What additional measures are put in place to ensure that more remote providers have the supplies needed to successfully execute an emergency plan, particularly during the COVID public health emergency?

Delphine O’Rourke: Supply chain integrity is a real challenge for all providers due to the nature of the supplies and resources that are needed to provide medical care, the “just in time” approaches for many supplies, and the generally small margins with which health providers work. These challenges are only exacerbated in rural and remote care settings. Unlike urban centers where we saw hospitals drive over PPE to another hospital several miles away during the peak of the COVID-19 pandemic, rural hospitals, which may be more than 250 miles away from the nearest provider simply do not have the luxury of proximity. Additionally, they may only have one supplier of services in their area. Laundry services, food supplies, and ambulance services are just some examples of goods and services that are often single-sourced. Consequently, when remote and rural providers review their critical goods and services and their contractual relationships, they should pay close attention to any area where single-sourcing is the only option because there is just no one else providing that service or good. They should also negotiate flow-thru provisions in their contracts that require a vendor that cannot perform to find another vendor and, additionally, insist that the flow-thru provisions apply even in times of a force majeure. Collaboration and cooperation with other providers will also be critical, and establishing the collaboratives ahead of time will avoid both operational and legal challenges. Hospital associations have played key roles in driving collaborative frameworks in preparation for and in response to emergencies. It is, no doubt, a real challenge for small rural and remote health systems. which may not have the purchasing power, leverage, and resources that large, urban centers may to be able to respond to not only one but compounded emergency situations.

Question: When the President declares an emergency or disaster under the Stafford Act or an emergency under the National Emergencies Act and the Secretary of the Department of Health and Human Services declares a public health emergency, the Secretary is authorized to waive or modify certain Medicare, Medicaid, CHIP, and HIPAA requirements. What types of waivers typically offer the most flexibility to rural, safety net, and sole community hospitals as they respond to natural disasters… and to pandemics?

Delphine O’Rourke: Section 1135 provides for blanket waivers that will apply to all applicable health care providers, as well as the opportunity for individual facilities to make their case and apply for individual waivers that meet their specific needs. I encourage providers to apply for the particular regulatory relief that is critical to their unique needs, in addition to ensuring they are abreast of the blanket Section 1135 waivers. In response to the COVID public health emergency, state hospital associations have applied for and been granted regulatory waivers for all facilities in their states and rural, safety net, and sole community hospitals can materially benefit from state-wide efforts to address their needs as a group. Waivers relating to time frames for submitting documentation due to staffing shortages, length of stays, use of space, scope of practice, and credentialing are likely to be most impactful for rural, safety net, and sole community hospitals.

Question: Communication and coordination, including with federal and state agencies and accrediting bodies, are crucial to the successful management of emergency situations. What advice can you offer to in-house counsel who might be tasked with overseeing these efforts, especially when their institutions may be facing more than one emergency?

Delphine O’Rourke: Communicate and develop positive relationships in advance. In the middle of one or potentially more emergencies is not the time to try to develop trusting working relationships with in-house departments at other hospitals, with state emergency response bodies, or any other federal, state, or local agency that will be part of and integral to your successful management of a response. Identify the contacts, introduce yourself, share emergency contact information, discuss chains of communication and collaboration, and bring together the key stakeholders, if possible, to discuss a comprehensive emergency response plan for your community. Pennsylvania, for example, is creating a state-wide emergency response coalition to engage critical stakeholders before the emergencies hit.

Part II – Questions for Academic Medical Centers

Question: How does emergency preparedness differ when planning for a natural disaster vs. a global pandemic? Both emergencies are somewhat anticipated but their effects—and response—are vastly different. Assuming emergency preparedness plans account for the chance that more than one emergency can strike at the same time, how are they prioritized?

Delphine O’Rourke: Generally, emergencies are divided into “human-made” and natural. Mass shootings, nuclear meltdowns, and oil spills would fall into the first category and hurricanes, tornados, tsunamis, fires, floods, and infectious diseases would fall into the second. Within the natural disaster category, there are many causes of emergencies, including infectious disease. Historically, naturally occurring weather events—even those that have increased in frequency in the past several years—were generally anticipated. Every year, hurricanes hit Florida. Their impact, however, could not necessarily be anticipated, yet there was sufficient historical data to calculate. We have not—and this may change—anticipated global pandemics on an annual basis. Additionally, infectious diseases, particularly novel diseases such as COVID-19, are largely unknown and have their own individual characteristics, including rates and patterns of transmission, and, therefore, preparation is particularly challenging if at all possible. Infectious diseases, however, are, by definition, contagious. Therefore, emergency preparedness plans for infectious diseases—and infectious diseases are part of the definition of the all-hazards approach which CMS and the Joint Commission require—must focus on steps necessary to prevent and/or reduce transmission. Human to human contact, whether direct or indirect, needs to be a focus. Physical separation, hygiene, sanitization, air flow, and airborne particles must all be considered. Prioritization will take into account the nature of the emergency, the magnitude of the trauma, the acuity of the injuries and a variety of other factors that would go into assessment and triage. It may very likely not be possible to prioritize. For example, in caring for patients affected by the California wildfires, it is not truly possible to prioritize the fires over COVID; they must both be considered.

Question: AMCs by definition are institutions designed to teach future generations of health care professionals. Do emergency preparedness plans include residents, multidisciplinary students, and other intended beneficiaries in their execution? When an emergency such as COVID arises and policies like teleworking and social distancing are in place, how does this affect the teaching aspect of emergency preparedness?

Delphine O’Rourke: Emergency response plans should include every aspect, and every person, who will be part of the response plan. If you need residents to help take care of the victims of a mass shooting, then they should be part of the plan and trained. From a teaching perspective, the same COVID protocols need to be put in place for emergency training as are put in place for any other type of training during the pandemic—whether it’s sexual harassment or corporate compliance training. Training in the midst of an emergency will definitely have to be adapted.

Question: AMCs commonly have patients and staff from various locations in the U.S. and internationally at any given time. When planning for a disaster situation or other emergency, how involved are stakeholders from other states or countries?

Delphine O’Rourke: The scope and nature of stakeholder involvement, whether from another state or country, is based on the unique characteristics of the provider. For example, a health system that operates across multiple states would definitely include stakeholders from all of those states. Similarly, a provider that is near the border of Canada and treats Canadian citizens on an on-going basis, should be incorporating Canadian stakeholders. Increasingly, states have called on responders from non-contiguous states with the expertise and capacity to come in and help. Pennsylvania has long been a leader in emergency response and the emergency management team has worked all over the country to bring much-needed experience, expertise, and additional resources to hard hit areas.

Question: Additionally, are emergency responders equipped to provide citizens of other countries with information or resources that are unique to them?

Delphine O’Rourke: Generally, issues relating to immigration and/or legal status in the U.S. would not fit within the scope of information/resources provided by emergency responders. Hospital associations, consular services, and/or federal immigration sources may be more appropriate sources of information.

Question: How do emergency plans address the potential need for translators or interpreters? 

Delphine O’Rourke: Emergency plans should definitely address the potential need for in person and remote language services both for emergent care and for care that is necessary but not immediately life threatening. In addition to staffing language service professionals, providers should consider additional resources through a third party vendor for surges in needs as well as remote language services when in-person services are either not available or would risk harm to the translators. Online language services, including video remote for American Sign Language, have become more and more common, increasing access to a greater number of language services, allowing a hospital to more easily meet a surge in demand and avoids risks of contamination. These plans and continencies should be considered and documented in the emergency response plan.

Question: How is a successful emergency preparedness plan measured? What metrics are looked at and reported to determine if the plan was adequate and followed appropriately?

Delphine O’Rourke: CMS, the Joint Commission and other federal and state bodies that regulate emergency preparedness by health care providers provide the elements that must be met for an emergency plan to meet the regulatory requirements. Providers must update their plans at least annually and the plans will be audited for completeness and effectiveness. While it is critical that a provider meet all of the necessary baseline requirements in its response plan, it is even more important that the provider successfully implement the plan and make revisions, as necessary, to save as many lives as possible. A well thought out and regulatory compliant emergency response plan in a binder on a shelf in a hospital administrator’s office is nothing if teams are not trained, if it is not well executed, and if lives are not saved.

The authors would like to thank Stephanie Williams (Regulatory Affairs Officer, Johns Hopkins University School of Medicine) for her contributions to this article.