The Foundations of Social Work

Social work is defined as the organized work which is intended to improve or advance the social conditions of a society or community. Particularly, it pertains to the improvement of the disadvantaged or the poor, the mentally ill or those otherwise unable to care for one’s self.

Social workers, or the professionals who try to improve the lot of the disadvantaged, provide psychological care through counselling, guidance and assistance, particularly in the form of social services. Social Workers are well trained for these roles and have a solid educational background either in a university for a BSW or MSW or at a community college for a diploma programme.

Social work is pervasive throughout modern society in the form of counselling at addiction centres, hospitals, clinics and offices. Trained social workers will talk with patients or clients who face difficulties in returning to society, offer them job training and career choices and guide them back into mainstream society. They will also assist the client in choosing to live back at home or in a group home with trained workers on site.

Social workers also work for the municipal and county governments and offer counselling, income assistance in the form of welfare and finally housing assistance when rent and securing jobs are too difficult to handle. The mentally ill and addicted will receive special treatment for their needs in the form of rehabilitation, group home living quarters and job-seeking assistance.

Social work is found in every public and private sector in which people, families and the destitute require assistance. Families can apply for assistance at the city level or be nominated by friends and neighbours when they are unable to seek help for themselves or their children. Children take a large proportion of a social worker’s role in looking after those who have been abused, neglected, or exploited. Children are 80 per cent of the impoverished and ill-equipped to be at risk for sexual abuse, physical assault and death.

Teachers, police and church workers are under the obligation to report any suspicion of abuse of a child and a social worker will investigate the situation at the home or at the school. If the home life is found to be lacking in basic necessities, such as food or supervision and care for the child or his siblings is detrimental to their welfare, then the children become the ward of the government and the parents are charged. However, it is in the best interests of the family to remain together with counselling and assistance with the basics of life.

The homeless need the most help during the cold winter months, and soup kitchens have to be open to feed the hungry and destitute. Once again, volunteers and church people help the social workers to set up safe hostels and places to stay, food stamps and allowances and soup kitchens with meals for the families to stay healthy. Social work is available at every level and is readily able to assist the needy.

Special Issues in Agreements Involving Outsourcing

The trend towards outsourcing will continue to grow as market pressures force corporations to be more tightly focused on core business functions, gaining competitive advantage and reducing costs. Outsourcing is an attractive alternative in good times and bad times. Shifting back end administrative and business functions to an external provider in good times, may be a means for quicker time to market and focusing resources on core business activities to grow the business. In bad times, outsourcing is a means for streamlining the enterprise by eliminating functions, which create a drag on capital and/or do not provide any competitive advantage.

In the current economic environment, concerns over, shrinking margins, liquidity and the
need to reduce operating cost structures is accelerating a trend towards shifting certain
back office administrative functions to outside suppliers. This trend is seen as a major
paradigm shift within enterprises, which have realigned their internal corporate
infrastructure to focus on more strategic areas of their core business.

Although the human resources (HR) function is viewed as critical within corporations,
increasingly, small, medium and even large corporations are moving to outsource this
service.

The case for outsourcing has three basic rationales. First the regulatory
compliance obligations imposed under ERISA, COBRA and IRS regulations, have
become extremely burdensome and expensive for companies. Consequently, avoiding
major legal problems and financial liability requires substantial investment in resources
and capital in an area outside of the core business of most companies. This makes
outsourcing a viable option even if it does not necessarily result in a cost savings in the
near term. Second, the need to upgrade HR systems and invest in new technology is
increasingly difficult when companies are hard pressed to invest in functions aligned with
the core competency of the enterprise. HR outsourcing service providers are better
positioned to invest in new technologies and software more likely to conform to “best
practices” for delivery of the service. Third, for companies with global operations,
employee self-service can substantially reduce costs and improve employee satisfaction
with the service. However, this requires integration of all processes- HRIS, payroll and
benefits administration- across the entire HR operation including its global ones.

Because of the business exigencies driving the shift towards HR outsourcing, the industry
is expected to grow to $37.7 Billion in 2003.
Currently HR outsourcing services fall primarily within three categories: Professional
Employer Organization (PEO), Business Processing Outsourcing (BPO) and Application
Service Providers (ASPs).4
PEOs assume and take full responsibility for the human resources administration,
including the legal liability for the company’s workers. It becomes in essence a coemployer
with final say over, hiring, firing, and compensation decisions. The PEO
becomes a partner, in the non-legal sense, with ownership of the HR function while the
company retains responsibility over all business matters.

BPO refers to all business processes and not just HR. Typically this involves transferring
the entire function to a service provider and is differentiated from PEOs because it
usually involves introducing new technologies and processes to bear in the HR service.
Because of the complexity of HR systems in large corporations, shifting to BPO may be
more expensive in the short term. However, long term it can result in benefits because
large HR outsource providers will invest in systems and technology viewed as
prohibitively expensive within a firm where this function lies outside of its core business.

The BPO services market is growing rapidly with analyst projecting revenues of $128
billion this year and growth to $234 billion by 2005.

Finally, ASPs host software on the web and rent it to users. The most commonly known
of these packages is “People Soft”. The latter application and other packages are used to
manage payroll, benefits, head count and other HR processes.

Each of the HR outsourcing services described has advantages and disadvantages for
particular enterprises depending, on the number of employees, affordability of the
service, type of business and the degree to which an enterprise desires to retain control of
this function in-house.

This paper will briefly cover the legal aspects of HR outsourcing and will discuss some
of the most common contract issues faced in outsourcing relationships, essential items
that ought to be considered by the parties and key provisions within outsourcing service
agreements.

As previously discussed, companies facing pressure to reduce costs or address the
personnel shortages due to corporate down sizing have several different outsourcing
alternatives available to them to delegate back-end administrative functions. Typically,
the first alternative firms look to before looking outside, is to retain control of the
function in-house and reduce employment related costs (taxes, benefits, headcount), by
using contingent staff or (temporary workers) or persons classified as “independent
contractors” (IC) to perform the work. Though this may be an appealing solution for
many firms, given the legal and economic benefits, improper classification of someone as
an IC, consultant or temporary worker, who is later deemed an “employee” carries
serious financial risks.

Friction has developed between the growing use of contract workers in lieu of full time
employees and, the public policy aims of providing workers with protections under
federal labor laws to take the Employment Retirement Income Security Act (“ERISA”)
and state law employee remedial measures. In addition to the tax risk of an IRS audit, the
risks are higher today that workers will bring claims for social security, workman’s
compensation or other actions challenging the misclassification, so that they may
participate in lucrative benefit programs provided by the employer.
The case that brought these issues to the fore was Vizcaino v. Microsoft Corporation
(“Microsoft I”) and its progeny of cases. In Microsoft I, plaintiffs, employees designated
as temporary workers or “free lancers”, brought an action against the corporation to
recover savings benefits under ERISA and for stock option benefits offered through a
stock purchase plan, that were available to regular employees.6 The Court framed the
legal and public policy issues in the opinion’s opening statement:
“Large corporations have increasingly adopted the practice of hiring temporary employees or
independent contractors as a means of avoiding payment of employee benefits, and thereby
increasing their profits. This practice has understandably led to a number of problems, legal and
otherwise. One of the legal issues that sometimes arises is exemplified in this lawsuit. The named
plaintiffs, who were classified by Microsoft as independent contractors seek to strip that label of
its protective covering to obtain for themselves certain benefits that the company provided to all of
its regular or permanent employees.”

The problems for Microsoft arose as a result of an IRS tax audit for tax years 1989 and
1990. The IRS examined the company’s employment records to determine if it was in
compliance with tax laws. Applying the common-law principles defining the employer-employee relationship, the IRS concluded Mircosoft’s “freelancers” were not
independent contractors but employees for withholding and tax purposes.
In reaching this conclusion, the IRS applied the test set out under the common law of
agency, which requires, in determining if a hired party is an “employee”, consideration of
the hiring party’s right to control the manner and means by which the product is
accomplished. The IRS applies a 20 factor “control test” to “assess all of the incidents
of the relationship” with no one factor being determinative of the employment
relationship of the parties.9 The US Supreme Court reached asimilion conclusion in
Nationwide Mutual Insurance Company vs. Darden party not to adopt the IRS factors
and, instead applied a twelve factors that it considered. In assessing the relationship of
the parties the court decided for determining whether an individual qualifies as a
“common law employee”.

Microsoft, on first impression, appeared to have taken the appropriate measures to avoid
stumbling into an employer-employee relationship- the workers were told they were
freelancers and signed various agreements classifying them as independent contractors,
that included provisions that the workers would be responsible for paying their own taxes
and benefits. However, after having taken these steps with respect to the form of the
relationship, the court found that Microsoft had fully integrated these workers into its
workforce, placing them alongside regular employees, sharing the same supervisors,
performing identical functions and working the same core hours. Because Microsoft
required them to work on site, they were given admittance keys, office equipment and
supplies of the company.

Even after the IRS determined that plaintiffs were “common law employees”, Microsoft
attempted to use a temporary agency to “house” these workers as employees of the
agency, so that it could continue to use them in the same manner previously described.
On review in Vizcaino v. U.S. Dist. Court for Western District of Washington, 173 F.3d
713 (9th Cir. 1999) (“Microsoft III”), the Court in striking down the District Court’s
modification of the class of plaintiffs, which it deemed a contravention of its order on
remand, rejected the lower court’s assertion that the eligibility for benefits of these
temporary agency workers turned on whether they were employees of the Company or
the agency. The District Court’s view precluded the possibility that the agency and
Microsoft could jointly employ the plaintiff. The Court held that at common law it was
possible for the plaintiff’s to be employees of both the temporary agency and of the
recipient of their services (Microsoft), if, based on a determination using the Darden
factors, an employee-employer relationship existed. In essence the agency and Microsoft
were joint employers and the triangular relationship that Microsoft created was not
viewed as precluding or as being mutually exclusive of a two- party relationship that
existed between the company and the temporary workers. So what are the lessons gleaned from the Microsoft cases?

o Review the language in the company’s benefit plans to ensure “covered
employees” is properly defined within the plan and not left to statutory or judicial
interpretation.

o The mere classification of workers as independent contractors is not sufficient,
and behavioral, financial and the type of relationship between the hiring party and
the workers must support the classification.

o Users of outsourcing services should apply the 20 IRS factors to conduct a selfassessment
of the relationship between the parties.

o Consider using only ICs that are incorporated so that the relationship is between
entities and not an individual and an entity.

o Ensure that the agreement reflects the 20 factors, so for example: allow the IC to
determine the means and the methods for delivery, limit the agreement to the
project, and ensure the contract calls for the IC to cover its expenses and benefits.

o Require that the IC submit an invoice prior to receiving any payments.

o Avoid placing IC in situations where work is subject to the direct supervision of a
company employee.

o Avoid imposing administrative requirements on the IC, which are applicable to
employees.

o Allow the IC to hire and delegate the work to its employees subject to the
requirements of the project.

In particular, the fact that a worker is employed by a temporary agency, or similar entity
is not a guarantee against misclassification under the joint employer rule applied by the
Ninth Cir. Court in Microsoft III. If a misclassification does occur a firm may qualify for
an IRS Section 530 “safe harbor” exception if it can show the following:

1. Reasonable basis for classification of individuals as ICs based on:

o Reliance on a relevant court case, the advice of a qualified accountant or attorney,
or IRS ruling;

o The IRS did not reclassify the same or similar workers in a previous audit;

o It is standard industry practice to treat the particular workers as ICs.

2. Consistently treated same or similar workers as ICs in the past.

3. Consistently filed federal tax forms 1099 on these same or similar workers.

Outsourcing any critical business function and especially one like HR must be carefully
planned and executed to be an economic and strategic success. HR operations require
trained and specialized personnel to handle complex processes and manage the
compliance responsibilities created under the myriad of federal and state employment
regulations. Outsourcing of this function carries the risk of losing qualified personnel and
a degradation of the function. A firm can ill afford the risk of entering into a relationship
with a vendor whose lack of expertise in payroll and benefit administration causes
disruptions and a loss of efficiency. This may, in the worst case, demoralize the work
force and expose the firm to significant legal liability. Partial success in this area can
mean total failure and the loss of strategic initiative.

Contracting of the outsource service is a process which requires inputs from all of the
stakeholders (HR personnel, users of the service, and the management team) and those
persons within or outside of the organization with expertise in the function. Before talks
are ever initiated with a vendor, the key goal is to define the scope of the service and the
performance metrics, which will be applied to measure success. The use of metrics will
be covered in greater detail below in respect to Service Level Agreements (SLAs).

Important to both parties in the transaction, is defining the kind of relationship, which
must be established for the arrangement to succeed. If the entire HR Dept function is to
be outsourced then it will be in the interest of both parties to enter into a long-term
relationship that will justify the up-front costs and investments that will be required of
each of them. This type of arrangement as previously mentioned is subject to the firms
particular circumstances, and will probably result in selecting either the BPO or PEO
alternative because of the broad scope of the outsourced service. For the buyer this type
of wholesale delegation is expensive, complex and risky. If it doesn’t work out, the
buyers will incur significant costs and, disruption to the business in replacing the vendor
or in bringing the function back in-house.

Typically, total outsourcing of a function is a major undertaking with broad implications
for both the buyer and vendor. In this situation the preferred relationship is one that is
more of a partnership, in the non-legal sense, where the parties view their interests as
mutually benefited by the relationship.

On the other end of the continuum is the outsourcing of processes, like payroll, which is
very specific and straightforward and can be executed on a short-term basis.
Normally, in the HR area, firms will retain part of the function in-house, and delegate
those functions to an ASP or BPO, which require major investments in technology or
software. An outside supplier whose core compency lies within function is better able to
absorb the costs, based on economies of scale. This type of arrangement will generally
result in an intermediate term relationship where the parties will have to develop close
collaboration but will not have to incur the high costs, and investment of resources
required in a long-term relationship.

Partnership arrangements require provisions that maximize the flexibility of the vendor in
performing the service. Typically because such relationships are appropriate in contracts
with long terms of duration, typically five to seven years, and complex service
arrangements, the approach ought to be less prescriptive with respect to the scope and
level of service.
In shorter-term arrangements more typical of supplier/purchaser relationships, contracts
need to be more prescriptive in defining the scope of the services and the client
requirements.

Generally contracts ought to build in some level of flexibility to allow for changes in:

business circumstances,
technology
and the needs of the buyer.

Transfer of Personnel and Assets:

Outsourcing arrangements may require the transfer of assets and personnel to the vendor.
Defining the terms covering the transfer of affected personnel will generally have
important implications for the buyer and its employees with respect to employment or
employment rights. When wholesale outsourcing of groups or functions occur, it is
important for firms to take measures to preserve the general morale, of those remaining
and communicate openly and honestly with those persons transferred under the
outsourcing agreement. Contract terms need to address how the outsourcing of the
function and subsequent transfer will affect benefits, pensions and pay of personnel
moved to the service provider. Consideration should also be given to the rights, if any,
the transferring firm may have to either enforce special terms affecting transferred
employees or the right to retain these employees in the event of contract termination.
With respect to equipment and other assets, terms governing the use by the vendor of any
equipment made available to it by the buyer should specify rights of ownership and other
matters related to the transfer of equipment or other items of value.

Defining the rights to intellectual property (IP) is critical in all outsourcing agreements.
Typically the vendor will want to retain rights in any IP developed by it in the course of
the arrangement. The thought being that it is providing a service and not being paid to
develop IP. The buyer on the other hand will want all rights to IP developed based on the
transfer of proprietary or confidential information to the vendor and any work product
developed in performing the service. This issue will usually be resolved through
negotiation.
Related to this are confidentiality provisions, which provide important contractual
protections with respect to each party’s right’s in and use of IP in the arrangement.

Services
This is will probably be set out in a schedule and negotiated based on the scope of the
services and the functions or processes that will be outsourced. As stated previously, the
nature of the relationship, partnership or supplier/purchaser will determine how detailed
and specific this ought to be.

In any event there should be sufficient clarity and definition for the parties to be able to
set mutual expectations and understand the deliverables that must be produced under the
agreement.
Termination
Defining the terms for exiting an arrangement is one of the most critical issues in an
outsource agreement. Generally, early termination provisions, which set out rights and
applicable penalties due in such event, should be a matter of last resort except in cases, of
material breach or force majeure.

Default provisions should set out escalation clauses and a reasonable cure period to
ensure the parties have procedures for resolving disputes and issues related to the
performance of their respective obligations.
There should also be provisions governing the management of the exit. These should
include the vendor cooperation in facilitating the transfer of the service to another vendor
and the return of any equipment or other items to the buyer, which were used by vendor
during the contract.
Consideration should be given to other provisions, which might help to reduce the level
of disruption to the buyer’s operations as a result of the termination of the agreement.

What is a Service Level Agreement (SLA)?

SLAs in an outsourcing arrangement identify the service levels or performance standards
that the vendor must meet or exceed. The SLA also specifies consequences for failing to
achieve the minimum service level set by the buyer.
SLAs should be applied to the key parts of the outsourced service and not necessarily to
every aspect. The purpose of SLAs is to ensure the buyer has the means to control the
level and the consistency of the service received from the provider.
Generally, the minimum level that ought to be set is that which is required to support the
buyer’s on-going business operations and HR requirements. An important rationale for
outsourcing should be to improve the level and quality of the function that is being
outsourced. Therefore the minimum level of service should be at least equal to the level
that existed before the function was outsourced to the provider.
In the HR area metrics are difficult to establish because much of what is being measured
is intangible. For example if buyer wants to determine the success of a web based
application for benefits, this can only be ascertained by surveying user satisfaction. As
such questionnaires and employee satisfaction surveys become essential tools for
measuring the performance of the vendor.

SLAS must reflect the agreement understanding of the parties as to what constitutes a
good result and with respect to measuring performance, their agreement on the
mechanisms used to measure the result.
The SLA should also cover what constitutes the best and the worst-case level of service.
In this regard the buyer will want to incorporate service credits, which may become
applicable in the event the vendor fails to meet minimum service levels. At the same time
it is also appropriate to consider incentives or bonuses, which the vendor can receive for
achieving the best-case level of service.

The point of any negotiation ought to be that it is in the interest of both parties that the
vendor meet or exceed the service levels set in the SLA. The buyers should not exploit
the use of SLAs, to reduce costs through the application of credits or penalties, because
this will only inject an unnecessary level of contention into the relationship that will
under cut the development of a partnership between the parties.
SLAs should not have a distorting effect on behavior, where the vendor becomes focused
only on those aspects of the service, that are measured, at the expense of other aspects,
which may not be weighted as heavily in the evaluation process. The vendor’s goal
should be to meet, or exceed expectations in every area covered by service.

Implications of NIMS Integration Plan For Hospitals and Healthcare

The Homeland Security Act of 2002 provided the authority for the creation of the Department of Homeland Security (DHS). It also directed the Director of DHS to create a National Incident Management System (NIMS). Published in 2004, NIMS formed the framework for detection, mitigation, response and recovery from manmade and natural occurring disasters, events and incidents of national significance within the United States, its territories, protectorates and Indian Tribal nations. NIMS provided the framework for the creation of the National Response Plan (NRP), also published in 2004.

The National Response Plan is an all-hazards, all-agencies approach to the detection, mitigation, response and recovery from disasters, whether natural or manmade events and incidents of national significance. A little known provision of NIMS created a classification system for all disaster-related resources. This classification system, the National Resource Typing System (NRTS) provides a unified cross-agency, cross-jurisdictional means of classifying all resources that are or could be used in response to a NRP/NIMS event, whether these resources are equipment or personnel.

Responsibilities of a Signatory:

All federal agencies, all 50 states, all U.S. protectorates and territories and all Tribal Nations within the scope and authority of the federal government have now become signatories to NRP/NIMS. Among these signatories are the Health Resource and Services Administration (HRSA) and the Department of Health and Human Services (DHHS), the parent agency for Medicare, Medicaid and Veteran Healthcare funding. This signatory status places certain responsibilities upon these agencies and governments, as well as providing them certain rights and privileges. These rights and responsibilities are incumbent upon all agencies that derive their funding or authority from a signatory to NRP/NIMS.

In addition to an irrevocable agreement to participate fully in any disaster, whether manmade or natural, event or incident of national significance within the region of that signatory or the authority of that signatory’s office, department or agency, all signatories to the NIMS/NRP have pre-agreed to all changes, classifications, modifications and regulations that may be promulgated by the director of DHS or the NIMS Integration Center or the NRP Implementation Center. Such changes, classifications, modifications and regulations must be implemented without modification.

NIMS Requirements Upon DHS of Significance:

Within NIMS, there are several clauses that are of significance to establishing a new industry in the area of Disaster Preparedness, Planning, Training and Evaluation within the United States. Recurrent through the document is the phrase “establish qualifications, credentials and certification for hospitals and healthcare facilities in cooperation with … and national professional organizations”. This phrase appears in every reference to hospitals and healthcare facilities in all levels of the response – administrative, financial, logistical and most notably operational. When hospitals are specifically noted, this phrase occurs with increased regularity. To date, there has been no classification, credentialing or certification system implemented by the DHS, NIMS, or NRP.

The NRTS provides no guidance, as of the writing of this report, for the qualification, certification, credentialing, or typing of medical providers and, more specifically, physicians. However, the NIMS Integration Center, on September 12, 2006, quietly published a Hospital and Healthcare Facility NIMS Implementation Plan.

NIMS Responsibility Upon DHHS of Significance:

In addition to an irrevocable agreement to participate fully in any disaster, whether manmade or natural, event or incident of national significance within the region of that signatory or the authority of that signatory’s office, department or agency, all signatories to the NIMS/NRP have pre-agreed to all changes, classifications, modifications and regulations that may be promulgated by the director of DHS or the NIMS Integration Center or the NRP Implementation Center. Such changes, classifications, modifications and regulations must be implemented without modification.

The Center for Medical Services (CMS) is the DHHS agency specifically empowered and charged with the responsibility of overseeing all operations for Medicare, Medicaid and Tricare. These responsibilities include the certification of participating Hospitals and Healthcare facilities whether directly through a network of Regional Offices (RO’s) and State Agencies (SA’s) or through approved private organizations including the Joint Commission for Accreditation of Healthcare Organizations (JCAHO) and the Healthcare Facility Accreditation Program (HFAP) of the American Osteopathic Association (AOA). CMS draws its authority directly from the secretary of DHHS and is responsible for performing all the duties and responsibilities of the secretary of DHHS as applied to Medicare, Medicaid and Tricare, including but not limited to promulgating regulations and regulatory guidance towards this end.

NIMS Implementation Center Hospital and Healthcare Facility Plan:

The NIMS Implementation Center Hospital and Healthcare Facility Plan provides a new landscape for those providing Disaster Planning, Preparedness, Training and Evaluation services as well as for national organizations involved in the certification or accreditation of healthcare facilities, healthcare professionals, planning professionals and emergency management professionals.

JCAHO Accreditation Standards and Disaster Preparedness:

The Joint Commission for Accreditation of Healthcare Organizations (JCAHO) has become the de facto standard for hospital and healthcare facility accreditation. The American Osteopathic Association (AOA) has a parallel Healthcare Facility Accreditation Program (HFAP). For the purposes of this discussion, there is no practical difference in the standards set forth by JCAHO and AOA. As JCAHO is the more common accreditation, the discussion will center on the JCAHO standards.

Participating hospitals and healthcare facilities renounce “self-certification” in favor of external accreditation by JCAHO. The DHHS through CMS uses JCAHO accreditation in lieu of CMS certification for the purposes of CMS provider eligibility. Loss of JCAHO accreditation is synonymous with loss of CMS provider eligibility. JCAHO published a special compliance manual entitled Standing Together which outlines the JCAHO standards for disaster preparedness in the post-9/11 era and provides guidance on meeting these standards.

The JCAHO standards have specifically adopted the START/JumpSTART Disaster Triage System (aka Integrated Triage). JCAHO guidance also specifically addresses Disaster Preparedness and Training through Immersion Simulation Drills, referred to as “community wide” and “influx drills.” The JCAHO guidance allows tabletop exercises, but this type of drill does not fulfill the need for influx drills. JCAHO specifies that an accredited hospital must conduct at least one community wide drill every year and at least two influx drills every two years.

Center for Medical Services (CMS):

The Department of Health and Human Services (DHHS), a signatory to NRP/NIMS is the supervisory agency for Medicare, Medicaid and Tricare (Veteran’s Administration) funding through the Center for Medical Services (CMS). The regulatory agency provides certification for hospitals and other healthcare facilities either through JCAHO/HFAP or directly though its own system of state inspection offices/teams. CMS regulations carry the force of federal law under various aspects of the Social Security Act Title XVIII and XIV. The specific Federal Register sections applicable to this discussion include 42CFR482.1 and its applicable regulatory guidance. The CMS State Operations Manual provides the clearest guidance on the current interpretation of 42CFR482.1 and CMS regulations. CMS provides for both enforcement of these safety and preparedness regulations.

As an office of a NRP/NIMS signatory agency, it is incumbent on CMS to comply with the full implementation of NRP/NIMS. This compliance includes requiring NRP/NIMS compliance of all vendors (Hospitals and Healthcare Facilities) receiving funding through CMS. CMS regulations create a regulatory requirement for full NRP/NIMS compliance by all Medicare, Medicaid and Tricare certified Hospitals and Healthcare facilities. As an office of a NRP/NIMS signatory (DHHS) these requirements are no more than a restatement of NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan. Further, CMS has elevated non-compliance with safety and preparedness to the level of an “immediate jeopardy” and thus immediate suspension of a hospital or healthcare facility’s status as a CMS (Medicare, Medicaid & Tricare) participating provider.

Correlation of the NIMS-IC Plan, CMS Regulations & JCAHO Standards:

Correlation 1:

The NRP/NIMS signatory agreement signed by DHHS and thus incumbent upon CMS to implement combined with the applicable policies, regulations and accreditation requirements of CMS, HRSA and JCAHO create a mandate for full and unmodified compliance with NRP/NIMS/NRTS and the NIMS Implementation Center Hospital and Healthcare Facility Plan is incumbent upon all hospitals and healthcare facilities.

Correlation 2:

CMS regulations and JCAHO standards both call for the use of an Incident Command structure and attention to the four phases of disaster. This paraphrases the NIMS Implementation Center Hospital and Healthcare Facility Plan requirements for the use of the Incident Command System structure and ICS education.

Correlation 3:

CMS regulations and JCAHO standards require hospitals and healthcare facilities cooperate with community based multi-agency responses to disaster as well as participating in community wide multi-agency drills. This parallels the NIMS Implementation Center Hospital and Healthcare Facility Plan and effectively implements this portion of this plan.

Correlation 4:

The combination of the CMS use of JCAHO accreditation as CMS certification and the deferment of certification by hospitals to JCAHO makes JCAHO accreditation the de facto certification to fulfill the NIMS Implementation Center mandate for “self-certification.” Thus JCAHO accreditation also has become the de facto certification of compliance with the NIMS Implementation Center Hospital and Healthcare Facility Plan for each individual Hospital or Healthcare Facility.

Correlation 5:

CMS regulations and JCAHO standards prescribe that an accredited hospital or healthcare facility must develop and publish for CMS/JCAHO review an operational budget including the provision of capital for all aspects of business operation. This echoes the NIMS Implementation Center Hospital and Healthcare Facility Plan provisions regarding Preparedness Funding.

Correlation 6:

CMS regulations and JCAHO standards require revision of existing plans as well as regular updating of plans in light of both pre-event Vulnerability Analysis and Post Event Review (After Action Review). These clauses validate the NRP/NIMS and NIMS Implementation Center Hospital and Healthcare Facility Plan requirements for plan revision and regular reevaluation.

Correlation 7:

CMS regulations and JCAHO standards detail requirements for both Community Wide and Surge (Influx) disaster drills. Further, both organizations discourage Tabletop Exercises in favor of Live Patient and Simulator Environment Drills. The detailed and recurrent reference to these drills emphasizes the weight and importance placed on this phase by these regulatory and accrediting agencies. This emphasis reflects the same importance given to disaster drills by NRP/NIMS and NIMS Implementation Center Hospital and Healthcare Facility Plan.

Correlation 8:

CMS regulations and JCAHO standards specify that hospitals and healthcare facilities must maintain sufficient supplies and resources including generators, potable water, medications and oxygen to ensure the safety of all staff, patients and residents. These requirements are included in multiple key sections of the regulations including Life Safety, Facility Operations, Patient Safety and Human Resources/Personnel. The JCAHO and CMS sections are actually more stringent and specific than the comparable NIMS Implementation Center Hospital and Healthcare Facility Plan portions.

Correlation 9:

CMS regulations and JCAHO standards specify the use of plain English and a common nomenclature in all communications without allowance for a different language or nomenclature in event of disaster. This common language requirement is far more stringently worded than the associated NIMS Implementation Center Hospital and Healthcare Facility Plan sections in large part owing to the high priority placed by both CMS and JCAHO on the 1999 To Err is Human report published by the Institute of Medicine.

Implication of the NIMS-IC Plan, CMS Regulations & JCAHO Standards:

Implication 1:

Whether by design or serendipity, recently published CMS regulatory changes and progressive refinement of JCAHO standards have resulted in accreditation criteria that now closely approximate those put forth in NRP/NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan. This has the effect of creating a regulatory mandate for hospitals and healthcare facilities to fully implement NRP/NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan. It is the position of High Alert that this creates a new market for Disaster Planning Services and Disaster Preparedness, Response & Recovery Education.

Implication 2:

Owing largely to the Nationals Patient Safety Program initiated by JCAHO and CMS in response to the Institutes of Medicine To Err is Human report, recently published CMS regulatory changes and progressive refinement of JCAHO standards have resulted in accreditation criteria for resource acquisition/inventory and common communication nomenclature that exceed those put forth in NRP/NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan. Further, both agencies have tied these criteria to the facility safety/Life Safety criteria for accreditation.

Implication 3:

Following the catastrophic events of the 2004 and 2005 hurricane season and the recent National Academies of Science reports regarding Hospital and Community Disaster Preparedness, recently published CMS regulatory changes and progressive refinement of JCAHO standards have resulted in accreditation criteria for disaster planning, education and drills that exceed those put forth in NRP/NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan. Further, both agencies have tied these criteria to the facility safety/Life Safety criteria for accreditation.

Implication 4:

Because certification by CMS and indirectly JCAHO accreditation are required for Medicare, Medicaid and Tricare insurance participation and because CMS and JCAHO have tied much of their disaster preparedness criteria to the facility safety and Life Safety certification criteria, violation of these criteria would immediately suspend CMS certification and thus immediately suspend Medicare, Medicaid and Tricare insurance participation by the violating hospital or healthcare facility. Further, all private insurance suspends program participation in the event o a CMS suspension. Thus violation of the CMS and/or JCAHO disaster preparedness criteria and by extension the NIMS Implementation Center Hospital and Healthcare Facility Plan holds significant financial penalties for any hospital or healthcare facility.

Conclusion:

Based on the comprehensive review of CMS regulations, JCAHO standards, NRP/NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan, it is the position of High Alert that this creates a market pressure towards Comprehensive Immersion Simulation Training that includes a “Crawl – Walk – Run” Disaster Exercise program for staff and ICS training for administration. This program can be delivered in 5 to 6 days and provide all required education and drills to meet all patient safety, disaster preparedness/response and community/multi-agency drills required under CMS regulations, JCAHO standards, NRP/NIMS and the NIMS Implementation Center Hospital and Healthcare Facility Plan. Such a program provide client hospitals and healthcare facilities with comprehensive disaster planning, preparation and response training, significant patient safety improvement through the use of simulation based training and demonstrable cost savings compared to the present market approach to these processes while protecting these clients from potential financial harm.

The fortuitous conflagration of CMS regulations, JCAHO standards, NRP/NIMS/NIMS Implementation Center Hospital and Healthcare Facility Plan revisions, National Academies of Sciences Reports on Hospital and Community Preparedness and the Institutes of Medicine To Err is Human report create an unexpected environment that yields de facto mandates for full and unmodified implementation of the NIMS Implementation Center Hospital and Healthcare Facility Plan. Further the market is ripe for the introduction of the next evolution disaster preparedness training.

Immersion Simulation Training will extend the disaster training to the inpatient bedside environment and include high fidelity human patient simulators to train not only disaster and terrorism response/treatment, but also patient safety and other issues raised in the Institute of Medicine report To Err is Human. This model creates a training environment akin to that used to train airline pilots and fighter pilots. Teams trained in this model we employ techniques patterned after those used to train NASCAR Pit Crews to work quickly and accurately in a high risk, high stress and fast paced environment. NDLS-FL and its partners cannot afford to miss such an opportunity.