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Nursing home and skilled nursing facilities have been particularly hard hit by the COVID-19 virus. The resident populations are uniquely vulnerable and outbreaks in facilities nationwide have sparked actions to protect elderly and disabled residents.
The Centers for Medicare & Medicaid Services (“CMS”) provided new guidelines in a memorandum detailing protections for nursing home residents from COVID-19. CMS recommends that all facilities restrict visitation of all visitors and non-essential health care personnel, absent certain compassionate care situations. This follows on the heels of the preliminary results of the inspection of the Kirkland, Washington nursing home, which was the epicenter of the COVID-19 outbreak. In addition to a focused inspection process provided to all facilities and inspectors, which is designed to ensure each facility is prepared to prevent the spread of the virus, the memorandum addresses additional guidance. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks. Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor. Facilities are expected to notify potential visitors to defer visitation until further notice.
The memorandum lists specific guidelines that facilities should adhere to, including but not limited to: (1) cancelling communal dining and all group activities; (2) performing active screening of residents and staff for fever and respiratory symptoms; (3) reminding residents to practice social distancing and perform frequent hand hygiene; (4) screening all staff at the beginning of their shift for fever and respiratory symptoms; and (5) identify staff that work at multiple facilities and actively screen and restrict them appropriately. The memorandum further discusses how facilities should consider hygiene and monitoring symptoms for persons entering/exiting facilities. Facilities are encouraged to review and revise how their vendors deliver supplies, such as implementing dedicated drop-off locations for supplies at facilities. If a nursing home has a resident suspected of having COVID-19, it should contact their local health department immediately.
Instead of visits, facilities should consider offering alternative means of communications and assigning staff as primary sources of contact for residents. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks. Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor. Facilities are expected to notify potential visitors to defer visitation until further notice.
The March 13, 2020 memorandum, in part, calls for facility staff to regularly monitor the Centers for Disease Control’s (“CDC”) website for additional information and resources. CMS recommends that facilities perform frequent monitoring for potential symptoms of respiratory infection. The facilities should further maintain a “person-centered approach to care,” which includes communicating effectively with residents, resident representatives and/or family and further understanding the individual needs and goals of care for residents. If a facility experiences an increased number of respiratory illnesses (regardless of suspected etiology), it should immediately contact their local or state health department for further guidance.
State governments closely regulate nursing homes, and many are issuing state specific guidance. If a state government implements actions that exceed CMS requirements through an executive order, the facility will not be out of compliance with CMS’ requirements. The memorandum further states that “State and Federal surveyors should not cite facilities for not having certain supplies (e.g., PPE such as gowns, N95 respirators, surgical masks and ABHR) if they are having difficulty obtaining supplies for reasons outside of their control.” However, CMS still expects “facilities to take actions to mitigate any shortages and show they are taking all appropriate steps to obtain the necessary supply as soon as possible.”
The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.
FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.
You can also contact your FMG relationship partner or email the team with any questions at [email protected].
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