CMS Emergency Preparedness Rule:  Part 3 - Sticks, Carrots & Twigs, Oh My!

CMS Emergency Preparedness Rule: Part 3 - Sticks, Carrots & Twigs, Oh My!

This is the third part of our article series looking at the proposed emergency preparedness rule published by the Centers for Medicaid & Medicare Services (CMS) on December 27, 2013. If you have not been following, you may want to start with Part One. Without Parts One and Two, you may be a bit confused.

bParati Carrots, Sticks, and Twigs Image

Welcome back! You now have a good handle on how a Carrot is analogous to a federal preparedness grant, a Big Stick to a federal mandate enacted by Congress, and a Stick to administrative rules issued by federal agencies. You also now know how the Twig is analogous with industry self regulation and understand its potential for impotency. In fairness, as the critics of Part Two have made clear, there are likely as many examples of potent Twigs as there are impotent Twigs, and the hospital sector is not alone in its opposition to new Sticks.

The Wake of Katrina

So, we left off in Part Two in the wake of Hurricane Katrina, where the impotent Twig reared its ugly head in the ugliest of ways. Instead of restating the well-stated examples of self regulation gone awry, I recommend that all in the Emergency Support Function #8 (ESF #8) community read two books: Five Days at Memorial, Life and Death In a Storm-Ravaged Hospital by Pulitzer Prize winner Sheri Fink, and Flood of Lies by New Orleans attorney James Cobb.

Five Days at Memorial displays the human costs on all associated with patient deaths at Memorial Hospital in New Orleans following Hurricane Katrina. Flood of Lies was written from the perspective of attorney James Cobb, who defended the owners of St. Rita's Nursing Home against charges of murder and cruelty to the elderly and infirm for failing to evacuate ahead of Katrina. These are two very unfortunate cases from different sectors of the healthcare system that illustrate the human, financial, and political costs of underestimating the importance of disaster preparedness--and how the Twig failed.

I was not asked to references these books, and I am not being paid to provide the links. I provide them because these books so clearly illustrate the problem with relying on the Twig to ensure healthcare facilities are investing in disaster preparedness. There are few, including healthcare executives, that would argue against the importance of disaster preparedness. But, unfortunately, saying it is a priority and making it a priority is two different things.

Now, it would be easy to try to spin the actions of Memorial Hospital and St. Rita's Nursing Home as a few bad apples. But, that would be disingenuous. In its 2006 report entitled "Nursing Home Emergency Preparedness & Response During Recent Hurricanes," the HHS Office of Inspector General (OIG) found that, aside from the 35 deaths at St. Rita's, an additional 36 residents died in 12 other nursing homes.

On the hospital front, the Urban Institute's 1996 report, "After Katrina: Hospitals in Hurricane Katrina, Challenges Facing Custodial Institutions in Disaster," states that aside from the 45 bodies found at Memorial Hospital, 8 were found at Charity Hospital and 19 at Lindy Boggs Medical Center. The stories and statistics do not end there, but the point is clear--too many people suffered, too many died--needlessly. And the Twig failed the people and those who owned the affected healthcare facilities.

Unfortunately, much like in war, the media and congressional reports like to cite the number of deaths as the score--a marker of the severity of an incident. But, what was the aggregate human suffering score in these healthcare facilities? How much is acceptable? Has the suffering ended? Such is the difficulty of social science research.

Post-Katrina Reform

So, how was federal policy altered in response to Katrina? To start with, in 2006, Congress passed and the President signed the Pandemic and All Hazards Preparedness Act (PAHPA) and the Post-Katrina Emergency Management Reform Act (PKEMRA). Both acts mandated significant, very much needed, changes within the Executive Branch. The mandated changes primarily affected the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS).

In HHS, PAHPA established the Assistant Secretary for Preparedness and Response (ASPR) to focus on ESF #8, the Hospital Bioterrorism Preparedness Program (NBHPP) was moved from the Health Resources Services Administration (HRSA) to ASPR, and the Division for At-Risk Individuals, Behavioral Health, and Community Resilience (ABC) was created.

In DHS, PKEMRA restored much of FEMA's authority lost in its 2002 demotion to a closet in the basement of DHS. The systemic failure of the emergency management system witnessed by the world during Katrina was not, to use a phrase from the NCAA Basketball Tournament, "One Shining Moment" for the United States. But, it was that moment that served as a reminder that emergency management could not be a basement operation under the thumb of DHS.

Aside from changes in DHS and HHS, both acts authorized record-setting preparedness Carrot opportunities to be offered to the states through DHS/FEMA, HHS/ASPR, and HHS/CDC. Obviously, the only problem with the Katrina response was a lack of Carrots, right? Interestingly, despite the establishment of ASPR and the re-branding of the NBHPP as the Hospital Preparedness Program (HPP), very little changed with disaster preparedness from the state level down. Roughly 70% of all ASPR funds received by the states continued down a path to the hospital campus, while the remainder of the healthcare system watched like kittens at the trough of lions.

Meanwhile, the CDC Division of State and Local Readiness (DSLR) continued sending its Carrots down a silo to the states with the same requirement for them to offer Sub-Carrots to the local health departments. And FEMA continued sending its Carrots down a silo to the states requiring them to offer 80% of their Carrots through Sub-Carrot Agreements to something "local." More Carrots, same ole silos.

In summation, PAHPA and PKEMRA brought needed changes to the DHS and HHS bureaucracies. PAHPA directed more Carrots to hospitals and local health departments; PKEMRA directed more Carrots to other "local" entities, but not local emergency management agencies. Except for FEMA's failure to build local emergency management capabilities, ASPR's failure to engage the broader healthcare system, and the federal government's overall failure to connect FEMA, CDC, and ASPR preparedness programs, all was good stuff. Smiles all around! More Carrots!

Where's the Stick?

Notably absent from the reforms was any meaningful use of the Stick to "encourage" preparedness beyond the paper victories that the predominantly private and not-for-profit healthcare facilities produced for state and accreditation surveyors. Given the death and mayhem that occurred in healthcare facilities in New Orleans and the fact that most healthcare facilities survive on Medicare and Medicaid reimbursements, the absence is curious.

So, what could have possibly happened to cause CMS to reverse course and publish a 121 page emergency preparedness Stick in December of 2012? Is Sandy sexier than Katrina? Stay tuned for Part Four where we will introduce Sandy and her love affair with the federal policy wonks.

Read Part 4 of 4 Here...

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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