CMS Emergency Preparedness Rule: Authority?

CMS Emergency Preparedness Rule: Authority?

Sources say the proposed Centers for Medicare & Medicaid Services (CMS) emergency preparedness rule soon will emerge from its cocoon. Two years of metamorphosis and we will now watch the proposed rule emerge as – a Stick. How big will the Stick be? We'll soon see. 

bParati Carrots, Sticks, and Twigs Image

What we do know is that the Stick is clearly designed to get the attention of C-suite healthcare executives who have generally given emergency preparedness nothing more than lip service. And we get it! It's risk management 101. Disaster and health emergency preparedness do not put heads in beds – they do not generate revenue. And what are the chances of....

But, soon failing to prioritize preparedness may cause an unexpected hole in the budget that C-suite executives never saw coming. That is, if they like doing business with the Nation's largest insurance company.

CMS, Medicare & Medicaid

CMS is a federal agency within the United States Department of Health and Human Services (HHS) that administers the Medicare program and works in partnership with state governments to administer Medicaid, the State Children's Health Insurance Program (SCHIP), and health insurance portability standards. In the simplest of terms, they run the Nation's largest health insurance company.

Medicare and Medicaid are two different government-run programs that were created in 1965 in response to the inability of older and low-income Americans to buy private health insurance:

  • Medicare is a federal program that provides health coverage for those 65 or older – or those who have a severe disability, regardless of income
  • Medicaid is a state and federal program that provides health coverage for those that have very low income.

There are few healthcare providers that can afford not accept Medicare and Medicaid. These 'boutique providers' serve an exclusive club of Americans – mostly the 1% – who have a truck load of money and can afford the highest level of service throughout their sunset years. And there is only so much room in that salon.

For the rest – those that serve the 99% - accepting Medicare and Medicaid patients is lifeblood. They either accept Medicare and Medicaid or close-up shop. But, if a provider is going to do business with the world's largest insurance company, there are a few conditions...

CMS Conditions of Participation

To qualify for Medicare and Medicaid certification and reimbursement, providers and suppliers of health services must comply with minimum health and safety standards termed 'Conditions of Participation' (CoPs).

In 1946 Congress passed the Hill-Burton Hospital Survey and Construction Act, which included application of uniform healthcare standards. To receive Hill-Burton funding, states were required to license entities to ensure that hospital facilities adhered to several quality of service requirements. Now, it's important to recognize that the standards could only be placed on states that chose to accept Hill-Burton funding, and that the standards were only for hospitals.

In 1965 Medicare and Medicaid were enacted as Title XVIII and Title XIX of the Social Security Act, providing hospital, post-hospital extended care, and home health coverage to most Americans aged 65 or older. The Act also gave states the option of receiving federal funding for providing health care services to low-income children, their caretaker relatives, the blind, and individuals with disabilities (Medicaid).

With the enactment of Medicare and Medicaid, Congress had to decide whether control of the quality of care provided by individual hospitals would be based on uniform federal standards – as they did for hospitals under Hill-Burton – or remain under state supervision and control (States' rights). 

Yes, States rights and individual rights are what makes America great, but also make it vulnerable. 'And when it comes to healthcare that tug-of-war becomes more complicated by the fact that the intersection where public health and healthcare meet is more like a two-way roundabout than a four-way stop. 

That said, Congress chose to establish uniform minimum national standards to be certified by state health agencies. The minimum national standards are the CoPs that states must apply to healthcare providers who participate in the program. And what states have opted out. Uhhh...,  like none of them.

So, yes, CMS has the authority to establish an emergency preparedness rule that applies to participating providers and suppliers.  And private healthcare providers and suppliers have the right to not participate in the Medicare and Medicaid programs.



Swinging the Stick

Getting a stick and swinging it are two different things. Stay tuned as we'll continue our journey in the coming weeks to take a deeper look why CMS proposed the emergency preparedness rule and how it will be enforced through state surveys, federal audits, and agreements with accreditation bodies, such as The Joint Commission (JCAHO).

Then, we will then dig into the CMS rule at the heart of our work, the Medicare and Medicaid Programs; Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers; Proposed Rule, as it is formally titled. We'll just call it the CMS Emergency Preparedness Rule. 

To learn more about how the CMS Emergency Preparedness Rule came to be, enjoy our 2014 series on the topic. Start with, CMS Emergency Preparedness-Rule A Shift From the Carrot To the Stick For Healthcare Providers.

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About Karl Schmitt

Karl Schmitt Photo Karl is the passionate Founder of He is on a mission to align the disaster preparedness programs of healthcare institutions with those of emergency management, public health, and others in the public, private, and not-for-profit sectors who care for the physical, mental, and spiritual health of people each day. Learn more about him here. He can be reached at

Karl Schmitt, MPA

Karl Schmitt, MPA

Karl is the Passionate Founder & CEO of bParati. He is on a mission to build a national network of effective, sustainable healthcare coalitions. More...

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