Virtually everyone has seen numerous news reports each day for the past week about multiple confirmed cases of COVID-19 in long term care facilities. Those reports started with a skilled nursing facility in Kirkland, Washington, that has now experienced double-digit resident deaths attributed to the virus; as of March 9, 2020, over 70 of the facility’s 180 employees have shown symptoms of the virus. Last week saw not only the release by CMS of guidance to address the coronavirus in nursing homes as well as hospitals, but also the passage by Congress of the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (CPRSAA), which was signed into law by President Trump on March 6. Already this week we have seen references to COVID-19 as a "sentinel event," and only five days after releasing its “Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes,” CMS updated that guidance to include more expanded recommendations as to restricting visitors to nursing homes, among other things.

Both the American Health Care Association and LeadingAge, the two largest trade associations for long term care providers, as well as associations for other types of providers, have circulated communications to their members in the past few days. We are taking this opportunity to make sure providers are aware of not only the relevant CMS guidance, but also some other practical considerations so that providers are prepared to comply with applicable rules and regulations and otherwise address COVID-19 risks that may arise in their facilities, as well as the broader communities where their residents and employees live and work.

While this alert covers some legal and regulatory considerations regarding the COVID-19 outbreak, for clinical recommendations and prevention strategies, providers should refer to the links below for information from the CDC and other agencies. It is not practical to include links in this communication to all the various state agencies that are also providing guidance for providers operating within their borders, but we are pleased to note most states seem to be placing COVID-19 links for providers on their home pages.

Regulatory Considerations and Surveys

You should expect regulatory compliance to be heightened until COVID-19 issues are better understood and controlled. On March 4, 2020, CMS issued QSO-20-14-NH (Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes), which was then revised and updated on March 9. While this guidance is specific for nursing homes, QSO-20-13-Hospitals has also been issued for hospitals. Assisted living facilities and other senior housing providers would be well advised to review such guidance, and applicable portions may need to be considered “best practices” for such providers during the current situation. Links to this guidance can be found below, and the memo is intended to help nursing homes “improve their infection control and prevention practices to prevent the transmission of COVID-19.” To do that, all facilities are encouraged “to monitor the CDC website for information and resources and contact their local health department when needed.” While QSO-20-14-NH is specific to nursing homes, you should monitor the requirements from your state health department daily, as they could expand restrictions similar to QSO-20-14-NH to assisted living providers and other facilities that the state health department regulates.

CMS also issued other memos to state survey agencies, state survey agency directors and accrediting organizations to inspect thousands of Medicare-participating healthcare providers across the country, including nursing homes and hospitals.

“Today’s actions, taken together, represent a call to action across the health care system,” said CMS Administrator Seema Verma on March 4. “All health care providers must immediately review their procedures to ensure compliance with CMS’ infection control requirements, as well as the guidelines from the Centers for Disease Control and Prevention. We sincerely appreciate the proactive efforts of the nursing home and hospital associations that have already galvanized to provide up-to-the-minute information to their members. We must continue working together to keep American patients and residents safe and healthy and prevent the spread of COVID-19.”

CMS has temporarily adjusted the focus of surveys on infection control and other emergent issues. However, in addition to the focused inspections, statutorily required nursing home inspections will continue according to the following regime:

  • Immediate jeopardy complaints and allegations of abuse and neglect;
  • Complaints alleging infection control concerns, including facilities with potential COVID-19 or other respiratory illnesses;
  • Statutorily required recertification surveys;
  • Any re-visits necessary to resolve current enforcement actions;
  • Initial certifications;
  • Surveys of facilities/hospitals that have a history of infection control deficiencies at the immediate jeopardy level in the last three years; and
  • Surveys of facilities/hospitals/dialysis centers that have a history of infection control deficiencies at lower levels than immediate jeopardy.

Other CMS memos provide answers to common questions that nursing homes and hospitals may have with respect to addressing cases of COVID-19, such as screening staff and visitors with questions about recent travel to countries with known cases, transferring patients between nursing homes and hospitals in cases for which COVID-19 is suspected or diagnosed, and when providers should take precautionary measures (including isolation and mask wearing) for patients and residents diagnosed with COVID-19 or showing signs and symptoms of COVID-19. The March 9 revisions to QSO-20-14-NH now specifically include recommendations as to restricting, limiting and/or discouraging visitors (with the level of restriction, limitation and/or discouragement varying depending on multiple factors), except for situations such as end-of-life or when a visitor is otherwise essential for the resident’s emotional well-being and care.

Crisis Communications with Residents, Families, Employees and Other Stakeholders

You should be prepared for the possibility of a “local crisis” in your facility or your local community. You likely have a communications team, not only of facility employees, but perhaps also including a communications or public relations professional you can call in the event of a host of “bad news possibilities.” You should add COVID-19 to the list of possibilities that might need to be promptly communicated not only to residents, families and staff, but also to a variety of other stakeholders. These can include not only your regulatory agencies, but also referral sources, hospitals (including both those with which you have transfer agreements and others in your service area), insurers, lenders/landlords and vendors. Media inquiries to your facility may be sudden, and the time to identify your spokesperson is not when the reporter and camera operator are walking into the facility. Unlike other public relations events that you may have already planned for, a public health emergency (whether real or perceived) may require assistance from medical professionals outside your organization. You should also consider consultants to work with to ensure you are meeting standards of practice and to assist in your external communications. For example, you may need assistance from medical professionals you do not normally deal with, such as infection prevention specialists.

You can find an article by LeadingAge on information and resources to use as you plan for and respond to COVID-19 at:

https://leadingage.org/covid19?_ga=2.143484277.1386117153.1583531475-728033611.1551900140

You can find an article by the American Health Care Association on information and resources to use as you plan for and respond to COVID-19 at:

https://www.ahcancal.org/facility_operations/disaster_planning/Pages/Coronavirus.aspx

American Health Care Association and LeadingAge members can also find articles on their respective websites about developing and implementing communications plans and strategies for a variety of events.

Resident Rights and HIPAA Compliance

While some rules may seem to get brushed aside by some during a crisis, your residents are still entitled to personal privacy and confidentiality, including the HIPAA requirements and state law requirements. Reminders to your staff of those rules may be in order, especially if your facility is in the spotlight during an isolated outbreak affecting only one or two facilities. While HIPAA permits certain disclosures to some health authorities to prevent or control the spread of disease, that exception is subject to the “minimum necessary” rule and deserves advance consideration. Certain situations that pose a serious and imminent threat to the health or safety of a resident or others may permit the disclosure of resident-specific information to prevent or lessen the threat (including those who are not healthcare professionals but may be in a position to prevent or lessen the threatened harm). When disclosing information to family, friends, and caregivers of a resident, check with the resident or use good professional judgment to infer what is in the resident’s best interest and limit disclosures to information related to that person’s involvement in the resident’s care. As those rules can be confusing, consult with experienced counsel promptly as to any questions; after the crisis passes there may be second guessing of your actions and disclosures by families, regulators, tort attorneys and others. Note that while the CPRSAA includes several provisions to allow providers to act quickly as they deal with COVID-19, there are no provisions that reduce or modify the HIPAA requirements.

Employee Issues

The past few weeks have brought interim “recommended strategies” for employers from the CDC, including education of your staff as to when they should not report to work due to their own health issues (until they are free of fever and certain other signs of illness and symptoms for at least 24 hours). Any employee exhibiting symptoms that could be associated with COVID-19 (fever, cough, shortness of breath, etc.) should be reported to supervisory personnel (self-reported or otherwise) so appropriate actions and precautions can be taken. Review your sick leave or “paid time off” policies to be sure they are reasonable and compliant with all regulatory requirements, including public health guidelines, and be prepared to immediately adjust your policies if new guidance from the CDC, your state health department or others indicates that such changes are in order. Be prepared to make adjustments to your staffing (including overtime) in the event your pool of staff is reduced due to their own illness or illness within their families requiring an absence to care for sick children or other family members.

As the CDC, OSHA and other agencies make signage, posters and other educational materials available, utilize those resources as you educate your staff on the myriad of issues and best practices associated with COVID-19. Additionally, Bradley’s Labor and Employment Practice Group has recently posted a blog article about potential pandemic issues, including COVID-19, regarding employees of all employers (including healthcare providers), which can be found at https://www.employmentlawinsights.com.

IT, Communications and Telemedicine

The CPRSAA includes several provisions to assist providers in utilizing telemedicine services, including expanding the definition of “qualified provider” and allowing broader utilization of smart phones and other devices in the delivery of services. Providers might consider this to be a good time to review their IT and communications systems, including investigating whether telemedicine can be beneficial, if they have not done so yet. There may be clinicians and experts with whom you will need to communicate to help with some resident assessments, treatments or otherwise, but they may be located hundreds or even thousands of miles away from your facility. The more robust and advanced a facility’s systems are the better outcomes the facility’s resident may experience.

To view the recent memos from CMS noted above, please see:

Suspension of Survey Activities

https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and/suspension-survey-activities

Guidance for Infection Control and Prevention Concerning Coronavirus Disease (COVID-19): FAQs and Considerations for Patient Triage, Placement and Hospital Discharge

https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and/guidance-infection-control-and-prevention-concerning-coronavirus-disease-covid-19-faqs-and

Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in nursing homes

ORIGINAL VERSION (3/4/2020)

https://www.cms.gov/medicareprovider-enrollment-and- certificationsurveycertificationgeninfopolicy-and/guidance-infection-control-and-prevention-coronavirus-disease-2019-covid-19-nursing-homes

UPDATED VERSION (3/9/2020)

https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and/guidance-infection-control-and-prevention-coronavirus-disease-2019-covid-19-nursing-homes-revised

Other helpful links include:

Information for Healthcare Professionals from CDC

https://www.cdc.gov/coronavirus/2019ncov/hcp/index.html

Coronavirus Disease 2019 Information from CDC

https://www.cdc.gov/coronavirus/index.html

Coronavirus Disease 2019 Information from Leading Age

https://leadingage.org/covid19

Coronavirus Disease 2019 Information from American Hospital Association

https://www.aha.org/2020-01-22-updates-and-resources-novel-coronavirus-2019-cov

CDC Strategies to Prevent the Spread of COVID-19 in Long Term Care Facilities

https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-term-care-facilities.html