Liability

Continuity of Care

For facilities entrusted with the lives of vulnerable populations, emergency preparedness plans are complex documents that never stop evolving.
By: | December 14, 2017 • 9 min read

A nightmarish scene unfolded in Port Arthur, Texas, after Hurricane Harvey. Law enforcement and volunteer teams forcibly evacuated a flooded nursing home that waited too long past the window of opportunity to launch a safe evacuation.

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Not even two weeks later, amid the chaos of Hurricane Irma, another crisis was brewing at a nursing home in Hollywood Hills, Fla. This time though, help didn’t arrive in time. Eight vulnerable residents died after a few days in the sweltering facility with no power. Six more died of related complications in the weeks that followed.

The latter facility has since been shut down, and the operators of both facilities are facing serious scrutiny from law enforcement as well as regulatory agencies. It’s no surprise multiple lawsuits are already in process.

Yet neither of these incidents is entirely isolated. There are long-term care facilities across the country that, in the event of a disaster, could be one questionable decision or one poorly executed procedure away from finding themselves publicly pilloried.

Crisis management in skilled nursing facilities and long-term care facilities is an incredibly complex endeavor that takes the cooperation of risk management, the executive suite, vendors, suppliers and community partnerships.

Fortunately, there are a great many resources available to help nursing and long-term care facilities ensure their ability to protect patients and residents as well as staff members.

The Plan’s the Thing

The Centers for Medicare & Medicaid Services (CMS) published an updated rule in 2016, “Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers.” Health care providers, including nursing and long-term care facilities, were required to be in compliance with the new rule as of Nov. 15 of this year.

Diane Doherty, senior vice president, Chubb Healthcare

So while facilities already had disaster plans in place, CMS set the bar a notch higher and formalized certain aspects of emergency preparedness planning for the health care industry.

“Without a doubt the rule represents new challenges to long-term care organizations due to the sheer amount of work related to complying with the regulation and the preparation involved,” said Diane Doherty, senior vice president, Chubb Healthcare. But Doherty said she feels confident that most facilities were able to meet the Nov. 15 deadline.

Still, there can be a significant gap between a facility that’s meeting minimum compliance requirements and a facility that’s genuinely ready to weather a storm or a sudden fire.

The foundation of a strong preparedness plan, experts agree, is a comprehensive hazard vulnerability assessment, or HVA, which looks at every type of emergency or disaster a facility might face and carefully addresses how each scenario might impact a location’s ability to keep its residents and employees safe, both during an emergency and in the days and weeks that follow.

The assessment helps pinpoint the services a facility will need by “identifying residents who require additional assistance — the wheelchair-bound, the bed-bound, the residents on ventilators,” said Doherty. This includes residents with dementia as well as those who simply need assistance ambulating.

“If you didn’t ask the right questions and don’t have the right information, it is hard to make a decision about the patient lives that are in your building.” — Scott Aronson, Director, Strategy & Business Development – Healthcare, RPA

Assessment best practices should include the help of community partners such as law enforcement and local emergency management and health department officials, said Scott Aronson, Director, Strategy & Business Development – Healthcare for RPA, a JENSEN HUGHES Company. RPA is an emergency management firm and technology provider serving the health care industry.

By engaging community resources, said Aronson, “you will at least know what they feel the threat is to your buildings and to your patients and to your infrastructure — of either getting resources in to you or getting you out of there — or whether your building will be able to stand up to the hazards.”

The quality of the assessment is key, said Aronson, because that information will help prioritize planning and support how decisions will be made during a crisis.

“If you didn’t ask the right questions and don’t have the right information, it is hard to make a decision about the patient lives that are in your building.”

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For the same reason, said Aronson, organizations can’t expect their state or local government to tell them what to do in a crisis. Municipalities aren’t typically inclined to order an evacuation except in extreme situations. It’s up to each facility’s incident command team to make decisions based on the information directly in hand.

Whether the decision in the moment is to shelter-in-place or evacuate, an organization’s vendor and supplier network is a significant piece of the emergency planning puzzle.

Transportation arrangements and sheltering agreements with receiving facilities must be in place in the event of an evacuation. Fuel, water and other supplies may be needed in other circumstances. Getting it right often means having a plan B — or even a plan C.

Risk managers need to look at the larger picture — their primary and contingency vendors as well as their vendors’ contingency arrangements.

“If your fuel supply is local, for example, then do you have a contingency? Are they part of a national company where they have other resources they can bring in from other locations?” said Rick Maltz, senior director of resident services and risk management at Erickson Living, home to more than 24,000 seniors in 11 states.

Marcia Price, Erickson Living’s vice president of operations and risk management, added, “Sometimes it is necessary to make a judgment call when determining the right contract partner. You may see a vendor and it seems great — maybe the pricing’s a little lower. But if it’s a local vendor, you have to think about [your contingency plan in] an emergency. It may be better to go with a national vendor who can always provide for you.

“However, if you’re going to use a local vendor, have a backup plan or a backup contract so that you give yourself some options.”

The drawback with back-up vendors though, Price cautioned, is if you’re not a high-use client, you may not be at the top of their priority list.

Having the right supplies in the right places is a strength of Erickson’s. As Hurricane Sandy bore down on the Northeast, Erickson trucked fuel in from Florida and kept the truck parked at one of its facilities.

When nobody else in the area had fuel, they were able to keep the facility’s generator topped off and also provided fuel for employees’ cars.

New approaches are being developed that can significantly expand options for facilities and organizations of every size. More than 1,000 southern New England facilities signed on to Mutual Aid, a technology platform developed by RPA. The platform is designed to enable facilities to support each other in the event of a disaster.

Mutual Aid is a powerful tool to amplify the resources of every member facility. “They will actually deploy each other’s vendors to help the other,” explained RPA’s Aronson. “Or they’ll send their own resources and assets to help the other.”

Even for large corporate groups, such a network of support can play a massive role in terms of rapid response. A hurricane enables the advance deployment of resources, but most other disasters don’t.

“A lot of the other things corporate groups may just not be prepared for — tornadoes, earthquakes, wildfires — you can’t just plop resources down in the middle of that,” said Aronson. “You have to rely on existing partnerships in the community, in the region, and in the greater state to help you out.”

Continuous Improvement

Training and testing of the emergency preparedness plan is essential. It’s never enough to just tick off a checklist, experts agree.

“You can check the boxes pretty easily, but did you actually learn anything? And will it benefit you in the future?” said Aronson. “It’s critical that they really do it and not just go through the 10-minute motions. They have to learn from that exercise and improve their plans and training going forward.”

Marcia Price, vice president of operations and risk management, Erickson Living

At Erickson Living, disaster preparedness messages are woven into the company’s broader safety education program, including department-specific safety talks, monthly town hall meetings and annual compliance training.

But it’s the drills that really test both the plan itself and each facility’s ability to execute it successfully.  Drills simulate how each person might react under the pressure of a real-life crisis and help identify opportunities for improvement.

“It really helps [the facilities] train their teams on what is expected. We think that’s an important piece of being able to train people on how you handle an emergency,” said Price.

In addition, she said, it’s a chance to work with local emergency responders and solidify those relationships and expectations long before a crisis occurs.

Both Maltz and Price said that each drill and each actual incident help identify gaps. Any unexpected wrinkle is an opportunity to update the plan in order to be better prepared for the next event. “A couple of the things we learned from Harvey we took to Irma,” noted Maltz.

Price added, “Our program is based on continuous learning; it’s not an annual event because this is a living document, and we keep updating it and we keep making sure that we’re improving on it.”

Free Resources

From a coverage perspective, property and business interruption policies are essential for nursing and long-term care facilities, as are workers’ comp, medical professional liability, general liability and D&O.

But carriers have more to offer their long-term care clients, said Doherty.

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“I think it’s important for [long-term care facilities] to partner with a carrier that’s going to help them meet these challenges head on, whether it’s assisting with conducting the risk assessment or providing education to their staff,” she said.

There’s a wealth of other resources out there for organizations to avail themselves of, and much of it is free.

The Nursing Home Incident Command System (NHICS) was developed in California and can be downloaded for free, said Aronson. It’s one of a large trove of free resources found at ASPR TRACIE, a double-whammy acronym for the Assistant Secretary of Preparedness and Response and Technical Resources, Assistance Center and Information Exchange.

Other free materials can be found on the websites of FEMA and the department of Health and Human Services. Numerous professional associations as well as state and federal websites offer free resources to help meet the latest CMS requirements.

“Long-term care facilities are under constant pressure to do more with less,” said Doherty. “Those that prepare and practice and train for that inevitable catastrophe — they really reduce the chances of debilitating losses while strengthening their ability to safely care for this fragile and vulnerable population.” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Emerging Risks

Stadium Safety

Soft targets, such as sports stadiums, must increase measures to protect lives and their business.
By: | January 10, 2018 • 8 min read

Acts of violence and terror can break out in even the unlikeliest of places.

Look at the 2013 Boston Marathon, where two bombs went off, killing three and injuring dozens of others in a terrorist attack. Or consider the Orlando Pulse nightclub, where 49 people were killed and 58 wounded. Most recently in Las Vegas, a gunman killed 58 and injured hundreds of others.

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The world is not inherently evil, but these evil acts still find a way into places like churches, schools, concerts and stadiums.

“We didn’t see these kinds of attacks 20 years ago,” said Glenn Chavious, managing director, global sports & recreation practice leader, Industria Risk & Insurance Services.

As a society, we have advanced through technology, he said. Technology’s platform has enabled the message of terror to spread further faster.

“But it’s not just with technology. Our cultures, our personal grievances, have brought people out of their comfort zones.”

Chavious said that people still had these grievances 20 years ago but were less likely to act out. Tech has linked people around the globe to other like-minded individuals, allowing for others to join in on messages of terror.

“The progression of terrorist acts over the last 10 years has very much been central to the emergence of ‘lone wolf’ actors. As was the case in both Manchester and Las Vegas, the ‘lone wolf’ dynamic presents an altogether unique set of challenges for law enforcement and event service professionals,” said John

Glenn Chavious, managing director, global sports & recreation practice leader, Industria Risk & Insurance Services

Tomlinson, senior vice president, head of entertainment, Lockton.

As more violent outbreaks take place in public spaces, risk managers learn from and better understand what attackers want. Each new event enables risk managers to see what works and what can be improved upon to better protect people and places.

But the fact remains that the nature and pattern of attacks are changing.

“Many of these actions are devised in complete obscurity and on impulse, and are carried out by individuals with little to no prior visibility, in terms of behavioral patterns or threat recognition, thus making it virtually impossible to maintain any elements of anticipation by security officials,” said Tomlinson.

With vehicles driving into crowds, active shooters and the random nature of attacks, it’s hard to gauge what might come next, said Warren Harper, global sports & events practice leader, Marsh.

Public spaces like sporting arenas are particularly vulnerable because they are considered ‘soft targets.’ They are areas where people gather in large numbers for recreation. They are welcoming to their patrons and visitors, much like a hospital, and the crowds that attend come in droves.

NFL football stadiums, for example, can hold anywhere from 25,000 to 93,000 people at maximum capacity — and that number doesn’t include workers, players or other behind-the-scenes personnel.

“Attacks are a big risk management issue,” said Chavious. “Insurance is the last resort we want to rely upon. We’d rather be preventing it to avoid such events.”

Preparing for Danger

The second half of 2017 proved a trying few months for the insurance industry, facing hurricanes, earthquakes, wildfires and — unfortunately — multiple mass shootings.

The industry was estimated to take a more than $1 billion hit from the Las Vegas massacre in October 2017. A few years back, the Boston Marathon bombings cost businesses around $333 million each day the city was shut down following the attack. Officials were on a manhunt for the suspects in question, and Boston was on lockdown.

“Many of these actions are devised in complete obscurity and on impulse, and are carried out by individuals with little to no prior visibility.” — John Tomlinson, senior vice president, head of entertainment, Lockton

“Fortunately, we have not had a complete stadium go down,” said Harper. But a mass casualty event at a stadium can lead to the death or injury of athletes, spectators and guests; psychological trauma; potential workers’ comp claims from injured employees; lawsuits; significant reputational damage; property damage and prolonged business interruption losses.

The physical damage, said Harper, might be something risk managers can gauge beforehand, but loss of life is immeasurable.

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The best practice then, said Chavious, is awareness and education.

“A lot of preparedness comes from education. [Stadiums] need a risk management plan.”

First and foremost, Chavious said, stadiums need to perform a security risk assessment. Find out where vulnerable spots are, decide where education can be improved upon and develop other safety measures over time.

Areas outside the stadium are soft targets, said Harper. The parking lot, the ticketing and access areas and even the metro transit areas where guests mingle before and after a game are targeted more often than inside.

Last year, for example, a stadium in Manchester was the target of a bomb, which detonated outside the venue as concert-goers left. In 2015, the Stade de France in Paris was the target of suicide bombers and active shooters, who struck the outside of the stadium while a soccer match was held inside.

Security, therefore, needs to be ready to react both inside and outside the vicinity. Reviewing past events and seeing what works has helped risk mangers improve safety strategies.

“A lot of places are getting into table-top exercises” to make sure their people are really trained, added Harper.

In these exercises, employees from various departments come together to brainstorm and work through a hypothetical terrorist situation.

A facilitator will propose the scenario — an active shooter has been spotted right before the game begins, someone has called in a bomb threat, a driver has fled on foot after driving into a crowd — and the stadium’s staff is asked how they should respond.

“People tend to act on assumptions, which may be wrong, but this is a great setting for them to brainstorm and learn,” said Harper.

Technology and Safety

In addition to education, stadiums are ahead of the game, implementing high-tech security cameras and closed-circuit TV monitoring, requiring game-day audiences to use clear/see-through bags when entering the arena, upping employee training on safety protocols and utilizing vapor wake dogs.

Drones are also adding a protective layer.

John Tomlinson, senior vice president, head of entertainment, Lockton

“Drones are helpful in surveying an area and can alert security to any potential threat,” said Chavious.

“Many stadiums have an area between a city’s metro and the stadium itself. If there’s a disturbance there, and you don’t have a camera in that area, you could use the drone instead of moving physical assets.”

Chavious added that “the overhead view will pick up potential crowd concentration, see if there are too many people in one crowd, or drones can fly overhead and be used to assess situations like a vehicle that’s in a place it shouldn’t be.”

But like with all new technology, drones too have their downsides. There’s the expense of owning, maintaining and operating the drone. Weather conditions can affect how and when a drone is used, so it isn’t a reliable source. And what if that drone gets hacked?

“The evolution of venue security protocols most certainly includes the increased usage of unmanned aerial systems (UAS), including drones, as the scope and territorial vastness provided by UAS, from a monitoring perspective, is much more expansive than ground-based apparatus,” said Tomlinson.

“That said,” he continued, “there have been many documented instances in which the intrusion of unauthorized drones at live events have posed major security concerns and have actually heightened the risk of injury to participants and attendees.”

Still, many experts, including Tomlinson, see drones playing a significant role in safety at stadiums moving forward.

“I believe the utilization of drones will continue to be on the forefront of risk mitigation innovation in the live event space, albeit with some very tight operating controls,” he said.

The SAFETY Act

In response to the terrorist attacks on Sept. 11, 2001, U.S. Homeland Security enacted the Support Anti-Terrorism by Fostering Effective

Warren Harper, global sports & events practice leader, Marsh

Technologies Act (SAFETY Act).

The primary purpose of the SAFETY Act was to encourage potential manufacturers or sellers of anti-terrorism technologies to continue to develop and commercialize these technologies (like video monitoring or drones).

There was a worry that the threat of liability in such an event would deter and prevent sellers from pursing these technologies, which are aimed at saving lives. Instead, the SAFETY Act provides incentive by adding a system of risk and litigation management.

“[The SAFETY Act] is geared toward claims arising out of acts of terrorism,” said Harper.

Bottom line: It’s added financial protection. Businesses both large and small can apply for the SAFETY designation — in fact, many NFL teams push for the designation. So far, four have reached SAFETY certification: Lambeau Field, MetLife Stadium, University of Phoenix Stadium and Gillette Stadium.

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To become certified, reviewers with the SAFETY Act assess stadiums for their compliance with the most up-to-date terrorism products. They look at their built-in emergency response plans, cyber security measures, hiring and training of employees, among other criteria.

The process can take over a year, but once certified, stadiums benefit because liability for an event is lessened. One thing to remember, however, is that the added SAFETY Act protection only holds weight when a catastrophic event is classified as an act of terrorism.

“Generally speaking, I think the SAFETY Act has been instrumental in paving the way for an accelerated development of anti-terrorism products and services,” said Tomlinson.

“The benefit of gaining elements of impunity from third-party liability related matters has served as a catalyst for developers to continue to push the envelope, so to speak, in terms of ideas and innovation.”

So while attackers are changing their methods and trying to stay ahead of safety protocols at stadiums, the SAFETY Act, as well as risk managers and stadium owners, keep stadiums investing in newer, more secure safety measures. &

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]