CMS Clarifies Emergency Preparedness Testing Exemption

In a memorandum issued on September 28, 2020, the Centers for Medicare and Medicaid Services (CMS) provided clarification to health care providers regarding an exemption to emergency preparedness testing exercise requirements during or after an actual emergency.  While the exemption discussed in the memorandum is not new, most providers have been heavily engaged with their response to COVID-19 and thus may not have considered its application.

As a backdrop to its discussion of the exemption, CMS provided an explanation of the various testing exercises required under the emergency preparedness regulations:

  • Required Exercises
    • Full-Scale Exercise – an operations-based exercise that involves multiple agencies, jurisdictions, and disciplines.
    • Functional Exercise – an exercise focused on exercising plans, policies, procedures, and having staff members involved in management, direction, command, and control functions. This exercise is used to validate and evaluate capabilities and functions.
  • Exercises of Choice
    • Mock Disaster Drill – a coordinated, supervised activity usually employed to validate a specific function or capability in a single agency or organization, often to provide training on new equipment, validate procedures, or practice and maintain current skills.
    • Table-top Exercise – an exercise in which key personnel discuss simulated scenarios in an informal setting. These exercises typically involve senior staff, elected or appointed officials, and other key decision makers.
    • Workshop – a planning meeting or workshop that establishes the strategy and structure for an exercise program under the Department of Homeland Security Exercise and Evaluation Program.
    • Full-Scale Exercise – see above.
    • Functional Exercise – see above.

Providers of inpatient services, including hospitals, long-term care facilities, inpatient hospice facilities, and others, must conduct two emergency testing exercises annually—one required exercise and one exercise of choice.  Providers of outpatient services, including home health agencies, hospice agencies, and many others, must participate in a community-based full-scale exercise annually (if available) or conduct an individual facility-based functional exercise every other year.  In such cases, providers of outpatient services must conduct a testing exercise of choice during the off year.

The exemption included in the regulation provides that if a provider experiences an actual or man-made emergency that requires activation of its emergency plan, the provider will be exempt from its next required full-scale community-based or individual, facility-based functional exercise, regardless of whether that required exercise would be due during or after the emergency.  To no one’s surprise, CMS considers the Public Health Emergency (PHE) declared by the President on March 13, 2020 to constitute such an emergency.  The key to claiming the exemption for providers is activation of their emergency plan, which must be demonstrated through written documentation.

With respect to exercises of choice, CMS clarifies in the memorandum that providers may need to conduct an exercise of choice following the current PHE if one was due this year and the provider did not already conduct one.  A table-top exercise to assess the provider’s response to COVID-19 is permissible and would dovetail with a related requirement that providers assess and update their emergency program as needed.

The memorandum also provided and explained three different scenarios for outpatient providers to illustrate the timeline for conducting exercises in light of the exemption.  Outpatient providers should familiarize themselves with the scenarios and ensure that they have documentation in place to evidence their emergency plan activation to ensure that the exemption applies to them.

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