September 16, 2021
Chiquita Brooks-LaSure, Administrator
Centers for Medicare & Medicaid Services
Department of Health and Human Services
P.O. Box 8010
Baltimore, MD 21244-1850
[Submitted electronically to www.regulations.gov]
RE: NCD Comments and Recommendations on CMS-1753-P Regarding Rural Emergency Hospitals
Dear Administrator Brooks-LaSure,
The National Council on Disability (“NCD”) is an independent federal agency charged with advising the President, his administration, Congress, and fellow federal agencies on matters of disability law and policy. I am writing to you in my capacity as the Chairman of NCD to respond to your Request for Information on Rural Emergency Hospitals (“RFI”), of August 4, 2021.
For a number of years, NCD has been actively engaged in appraising healthcare access, quality of care, and health outcomes for patients with disabilities. NCD has repeatedly expressed concerns about inequities in healthcare experienced by people with disabilities to the U.S. Department of Health and Human Services (HHS), particularly with regard to people with physical, sensory, and intellectual disabilities, who frequently face physical, communication and attitudinal barriers that negatively impact their ability to attain equitable healthcare. NCD has also made recommendations to the President, Congress, and HHS, for practical, achievable, actions that would help eliminate barriers and end disparities in care and the resulting poorer health outcomes that result. NCD’s most recent advisory report, for example, focuses on inaccessible medical diagnostic equipment as a systemic barrier to appropriate medical care and presents decades of research showing the statistically significant sub-optimal treatment of people with disabilities in the receipt of healthcare.
NCD’s comments and recommendations responding to the RFI, focus on the topics of health and safety standards, and quality measures and reporting requirements for Rural Emergency Hospitals (REHs).
Comments and Recommendations
TYPE AND SCOPE OF SERVICES OFFERED
1. What are the barriers and challenges to delivering emergency department services customarily provided by hospitals and CAHs in rural and underserved communities that may require different or additional CoPs for REHs (for example, staffing shortages, transportation, and sufficient resources)?
People with I/DD (and other disabilities) are with great frequency treated in emergency departments (Eds) due to insufficient Medicaid reimbursement rates for preventive care and oral healthcare, directly resulting in a lack of healthcare providers willing and able to provide care for people with I/DD. The lack of ability to provide care for this demographic is directly attributed to the lack of disability cultural competency training in undergraduate medical schools, and postgraduate residency programs and fellowships. Moreover, physicians can become board-certified in internal medicine, family medicine and primary care medicine without having seen a single patient with intellectual or developmental disabilities. As such, it is vital that ED, and also non-ED, health professionals, are trained in disability cultural competency. ED staff must also be prepared to provide oral health emergency services with the aid of application of anesthesia, when necessary.
Further, with respect to transportation, certain disabilities, including sensory, cognitive, and physical disabilities, increase the rate, frequency, and severity of falls while being transported. In addition, with growing frequency, non-emergency transport providers make available to persons with mobility disabilities who use mobility devices, inaccessible vehicles that result in missed appointments and delayed treatments. REHs should ensure that transportation made available is appropriate to the needs of patients with disabilities and should further ensure that patients can request and be provided with accommodations prior to transport, including but not limited to the ability of a direct support professional or other support person, to join the patient during transport, without cost.
3. What, if any, virtual or telehealth services would be appropriate for REHs to provide, and what role could virtual care play in REHs?
Telehealth services are becoming more prevalent every day, especially so during public health emergencies such as the current COVID-19 pandemic. Hospitals must ensure that telehealth services are fully accessible to people with disabilities (including, but not limited to, people with low vision, people who are blind, people who are hard of hearing or deaf). The lack of accessible transportation or the inability to drive is a barrier to reaching needed healthcare for many people with disabilities, and this is pronounced in rural areas where hospitals are frequently further away and accessible public transportation is limited. Telehealth opened the door to expanded availability to healthcare for everyone, and for people with disabilities without sensory disabilities or limitations, who historically had limited access due to transportation barriers, benefitted greatly by this expanded access; however, those with sensory disabilities did not for the absence of accessible features and on-screen ASL interpreters. The public is now accustomed to telehealth for many types of health visits and the nation’s healthcare systems have developed capacity to provide such care. It is critical that this development, a silver lining in the pandemic, remains an option for people with disabilities in rural settings who may not otherwise have access to healthcare, provided, however, that the telehealth platforms are accessible. NCD recommends that CMS ensure that REHs maintain and improve telehealth capabilities, ensuring compliance with applicable guidelines and standards on accessibility and provide REHs the support to do so.
HEALTH AND SAFETY STANDARDS, INCLUDING LICENSURE AND CONDITIONS OF PARTICIPATION
7. The REH must meet staff training and certification requirements established by the Secretary. Should these be the same as, or similar to, CAH requirements (Personnel qualifications and Staffing and staff responsibilities)? Are there additional or different staff training and certification requirements that should be considered for REHs and why?
While there is a myriad of contributing factors involved in the health disparities in patients with disabilities (i.e., access, stigma, reimbursement, transportation, economics, and environment), one of the main identified factors is the lack of physician training in the assessment, management, and treatment of patients with disabilities.
This lack of training is a noted deficit in both undergraduate medical education as well as post graduate clinical training in residency and fellowship programs.
While disability cultural competency training for medical professionals was needed prior to the pandemic, the pandemic has again demonstrated the need for medical professionals to receive disability cultural competency as many hospitals deprioritized, and in certain instances categorically excluded, persons with disabilities from receiving treatment for the virus. This is a problem that must and can be remedied by mandating inclusion of disability cultural competency training in all levels of medical school education and as a condition of participation in federal healthcare programs.
NCD recommends that CMS requires REHs to provide disability cultural competency training for all medical providers to ensure that ensure that they are prepared to meet the health needs of people with disabilities. We recommend that such training incorporate the Core Competencies on Disability for Health Care Education drafted by the Alliance for Disability in Health Care Education. Those core competencies present standards on social, environmental, and physical aspects of disability to inform health professionals on how to provide effective, interprofessional team-based health care. This action is in line with Section 5307 of the Patient Protection and Affordable Care Act that states that the Secretary of HHS may identify and disseminate disability cultural competency curricula.
8. What additional considerations should CMS be aware of as it evaluates the establishment of Conditions for Participation (CoPs) for REHs? Are there data and/or research of which we should particularly be aware?
Two primary examples of CoPs are:
Compliance with federal disability rights laws such as Section 504 of the Rehabilitation Act, titles II and III of the Americans with Disabilities Act and Section 1557 of the Patient Protection and Affordable Care Act regarding accessibility and accommodations for people with disabilities should be a primary consideration and required CoP. For example, accommodations must be provided to patients with disabilities during their care, including but not limited to the availability of on-site sign language interpreters or, when appropriate, video remote interpreting services, to ensure the ability of patients to communicate effectively with their healthcare providers.
Inaccessible medical and diagnostic equipment is among the primary reasons for the susceptibility of people with paralysis and mobility disabilities to experience substandard health care. The availability and use of accessible medical and diagnostic equipment are required by the overarching nondiscrimination obligations under the federal nondiscrimination laws but many healthcare facilities lack accessible equipment. Without such equipment, such as, height-adjustable exam tables, accessible mammography equipment, wheelchair accessible weight scales and lift and transfer equipment to facilitate safe transfers, among other accessible medical and diagnostic equipment, people with mobility disabilities will remain less likely to receive recommended preventive health care services—like cervical cancer screening; prostate cancer screening; colorectal cancer screening; obesity screening; and breast cancer screening. NCD recommends that CMS require each REH to obtain and maintain accessible medical equipment as part of their compliance with federal law and as a CoP.
9. What, if any, lessons have been learned as they relate to rural emergency services during the COVID-19 pandemic that might be pertinent to consider for policy implementation after the Public Health Emergency?
During the pandemic, direct support workers, including for some patients with Intellectual and developmental disabilities and patients with paralysis or mobility disabilities, were at times prohibited from entering hospitals with patients that required their services. In addition, Deaf patients were often denied the presence of an on-site sign language interpreter. HHS’ Office for Civil Rights was required to clarify that hospitals were required to accommodate patients with disabilities who required the assistance of a direct support worker. CMS should therefore ensure that each REH has accommodation policies that address this issue as well as other common issues for people with disabilities seeking healthcare during the pandemic (see description in Question 13 regarding a Patient Bill of Rights). It is vital for equitable healthcare that the role and need for direct support workers is recognized, and accommodations permitting their presence with a patient are provided in REH policies.
Hospitals did not have an adequate supply of personal protective equipment, hospital beds, or life-saving medical equipment (e.g., respirators), prior to the outbreak of the coronavirus pandemic. As a result, previous formalized triage protocols were implemented, and informal protocols were used to ration and prioritize care. This contributed to unnecessary loss of lives and can be prevented by advance planning based on the lessons learned from the pandemic. NCD recommends that CMS ensure that each REH has an adequate supply of such equipment readily available so that REHs are prepared to respond to a surge of patients in a future catastrophic public health event that impacts the entire community where the REH operates.
12. With respect to questions 1 through 11 above, are there additional factors we should consider for specific populations including, but not limited to, elderly and pediatric patients; homeless persons; racial, ethnic, sexual, or gender minorities; veterans; and persons with physical, behavioral (for example, mental health conditions and substance use disorders), and/or intellectual and developmental disabilities?
See responses above.
13. How can the CoPs ensure that an REH's executive leadership (that is, its governance, or persons legally responsible for the REH) is fully invested in and held accountable for implementing policies that will reduce health disparities within the facility and the community that it serves? In addition, with regards to governance and leadership, how can the CoPs:
- Ensure that health equity is embedded into a facility's strategic planning and quality improvement efforts; and
- Ensure that executive leadership is held accountable for reducing health disparities?
NCD recommends that CMS, with the involvement of HHS’ Office for Civil Rights, issue a Patient’s Bill of Rights for People with Disabilities, for all hospitals receiving federal funding, including REHs, to help ensure that leadership is held accountable for reducing health disparities. The Bill of Rights would include information on the following rights: effective communication, policy modifications, treatment without discrimination, access to personal support persons, safe patient handling, use of personal medical equipment, physical accessibility, choice of less invasive reasonable treatment or health maintenance alternatives; having an Advance Directive, Physician Orders for Life-Sustaining Treatment (POLST), or Do Not Resuscitate (DNR) orders without undue influence; information on and assistance for returning to the community from hospital or institutional care; and freedom from assumptions about one’s quality of life and capacity to benefit from treatment or survive treatment because of the presence of a disability or particular condition.
REH advisory committees, executive leadership, and ethics committees should also be required to include members who are individuals with disabilities.
In addition, REH advisory committees should be required to include a representative from the state’s office for Protection and Advocacy and from Center for Independent Living in hospitals’ respective service areas.
14. An important first step in addressing health disparities and improving health outcomes is to begin considering a patient's post-discharge needs and social determinants of health prior to discharge from a facility. How can health equity be advanced through the care planning and discharge planning process? How can the CoPs address the need for REHs to partner with community-based organizations in order to improve a patient's care and outcomes after discharge?
NCD recommends that CMS require that discharge plans for patients with a disability include specific notes, instructions or concerns that relate to that person's disability (whether or not the disability was the reason for the admission) and the post discharge action steps (as a means of accommodating the patient’s needs).
Also, in adherence to federal civil rights protections for people with disabilities, REH’s discharge planning should focus on returning the patient to a home or community-based setting to the fullest extent possible with necessary supports and services as required under the Americans with Disabilities Act and the U.S. Supreme Court’s decision in Olmstead v. L.C.
In addition, REH’s should establish and maintain relationships with the leaders of their state’s Protection and Advocacy office for people with disabilities and the Center for Independent Living in their respective service areas to ensure that information on resources and supports for patients with disabilities are available to inform the discharge process.
15. In order to ensure that health care workers understand and incorporate health equity concepts as they provide culturally competent care to patients, and in order to mitigate potential implicit and explicit bias that may exist in healthcare, what types of staff training, or other efforts would be helpful?
CMS should require REHs to provide staff with disability cultural competency training and implicit bias training. See response to No. 7 above.
Also, to protect patients with mobility disabilities and staff who have direct patient contact, REHs should develop and implement safe patient handling policies and provide staff training. Training should include the use of accessible examination equipment, mechanical lifts, and physical transfers – highlighting the need to respect the dignity of patients with disabilities in all transfers and their preference of transfer methods.
16. How can the CoPs ensure that providers offer fully accessible services for their patients in terms of physical, communication, and language access with the resources they have available to them?
CMS should ensure that each REH has an adequate amount of accessible medical and diagnostic equipment, including exam tables, radiology machines, and wheelchair accessible weight scales that can be accessed by patients with mobility limitations and mobility disabilities.
CMS should direct REHs to include, in both their nondiscrimination notices and their staff training, the recognition of policy modifications as part of a patient’s right to effective communication under federal nondiscrimination laws, including Section 504 of the Rehabilitation Act, Section 1557 of the Patient Protection and Affordable Care Act and the ADA, in addition to the provision of auxiliary aids and services when needed by patients with disabilities to receive effective care. Concrete examples should be provided, such as giving exceptions to face mask mandates when an individual cannot wear a mask by reason of their disability and to general “no-visitor” policies when needed for disability-related communication needs.
19. Based on experiences in quality reporting by small rural hospitals and CAHs, what barriers and challenges to quality reporting are REHs likely to encounter? What quality reporting strategies should CMS consider to mitigate those barriers?
An issue not limited to REHs but one in which REHs play an important role is the historical dearth of data collection of disability and functional status in healthcare settings. The pandemic exposed these data gaps again; during the pandemic there was a lack of data on infection, hospitalization, treatment, and death rates of people with disabilities in the health care and public health context, leaving the nation with little information on this for approximately 65 million Americans with disabilities, and the subset of 20 million with mobility disabilities. Broad-based, standardized, data collection that includes questions regarding disability is necessary to ensure the nation’s healthcare system is able to fully and equitably serve these patients.
NCD recommends that CMS require REHs to collect basic data on disability and functional status of patients and report that information to CMS in a systematic manner. This information is necessary for proper planning and treatment for patients with disabilities. To the extent that currently utilized data collection instruments do not contain questions on disability and functional status, CMS should immediately start the process of identifying the correct questions and updating these instruments in consultation with appropriate HHS offices, such as the National Coordinator for Health Information Technology.
NCD appreciates the opportunity to provide information to improve care at Rural Emergency Hospitals and appreciates CMS’ efforts to ensure quality healthcare for people with disabilities. The recommendations herein would improve access and quality of care for millions of patients by helping to ensure that the civil rights of people with disabilities in healthcare are recognized and by lessening or eliminating barriers that have long prevented people with disabilities from equitable medical care. This has taken on a greater level of urgency as the pandemic revealed systemic weaknesses in the ability of hospital emergency units to respond to patients with disabilities. We urge CMS to move forward with rulemaking to implement these recommendations for REHs.
Should you wish to discuss this letter, please do not hesitate to contact Ana Torres-Davis, Senior Attorney Advisor, at (202) 272-2004.
Andrés J. Gallegos
 National Council on Disability. Enforceable Accessible Medical Equipment Standards: A Necessary Means to Address the Health Care Needs of People with Mobility Disabilities, June 2021. Available at https://ncd.gov/publications/2021/enforceable-accessible-medical-equipment-standards.
 See, 28 C.F.R. Part 35, Nondiscrimination on the Basis of Disability in State and Local Government Services and 28 C.F.R. Part 36, Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities.
 See NCD report at footnote 1.
 Title II of the ADA requires a “public entity [to] administer … programs … in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR § 35.130(d). Also see, Olmstead v. L.C., 527 U.S. 581 (1999).
 See NCD’s report at footnote 1.