On October 6, 2020, the Michigan Department of Health and Human Services ("MDHHS") issued an emergency order (the "MDHHS Order") that retains many of the same requirements that apply to residential care facilities under the previously issued executive orders. As noted in a prior blog post, the Michigan Supreme Court recently held that Governor Whitmer did not have authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic. Most of the same requirements will continue to apply to residential care facilities under the MDHHS Order. The MDHHS Order became effective immediately, and will remain in effect through October 30, 2020 (and may be renewed through a subsequent order).

The MDHHS Order applies to all residential care facilities. A "residential care facility" is defined to include a nursing home, home for the aged, adult foster care facility, hospice facility, substance use disorder residential facility, independent living facility, or assisted living facility, as each of those terms is defined in the MDHHS Order.

The MDHHS Order has three main components: notice requirements, limitations on visitors, and limitations on communal dining. A summary of each component appears below.

I. Notice

The MDHHS Order requires that all residential care facilities must:

  • Notify employees and residents of the presence of a confirmed COVID-19 positive employee or resident within 12 hours of identification;
  • Inform legal guardians or health proxies for all residents within the facility of the presence of a confirmed COVID-19 positive employee or resident within 24 hours;
  • Post a notice in a conspicuous place near the main entrance of the care facility indicating the presence of a confirmed COVID-19 positive employee or resident;
  • Contact the local health department in the facility’s jurisdiction to report the presence of a confirmed COVID-19 positive employee or resident;
  • Timely notify employees of any changes in CDC recommendations related to COVID-19;
  • Keep accurate and current data regarding the quantity of each type of appropriate PPE available onsite, and report such data to EMResource upon MDHHS’s request or in a manner consistent with MDHHS guidance; and
  • Report to MDHHS all presumed positive COVID-19 cases in the facility together with any additional data when required under MDHHS guidance.

II. Visitor Limitations

The MDHHS Order provides that covered facilities must prohibit from entering their facilities, any visitors that: (1) are not necessary for the provision of medical care, the support of activities of daily living, or the exercise of power of attorney or court-appointed guardianship for an individual under the facility’s care; (2) are not a parent, foster parent, or guardian of an individual who is 21 years of age or under and who is under the facility’s care; (3) are not visiting an individual under the facility’s care that is in serious or critical condition or in hospice care; and (4) are not visiting under exigent circumstances or for the purpose of performing official governmental functions. Facilities that allow visitation consistent with the MDHHS Order must follow several requirements listed in Section 7 of the MDHHS Order.

A covered facility may permit outdoor visits if all of the following criteria are satisfied:

  1. The facility has had no new COVID-19 cases originate in the facility, including those involving residents or staff (“facility-onset cases”), within the prior 14 days. Admission of a resident who is known to be COVID-19-positive at the time of admission does not constitute a facility-onset case;
  2. The local health department has not made a determination that the facility is unsafe for visitation based upon local epidemiological conditions;
  3. The outdoor visitation area allows for at least six feet between all persons, and tables and chairs are disinfected after each use;
  4. The outdoor visitation area provides adequate protection from weather elements (e.g., shaded from the sun); and
  5. An employee or volunteer trained in infection control measures has sufficient proximity to observe and assure compliance with the above-listed protections.

III. Communal Dining Limitations

The MDHHS Order requires covered facilities to limit communal dining and internal and external group activities consistent with Center for Medicare and Medicaid Services guidance and MDHHS guidance.