Key Concerns for Nursing Homes Amid the COVID-19 Pandemic

March 23, 2020

In an effort to keep nursing home residents and staff safe in the midst of the novel coronavirus (COVID-19) pandemic, the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) issued guidance on infection control and prevention measures for nursing home facilities.

CMS Administrator Seema Verma noted that “seniors with multiple conditions are at the highest risk for infection and complications [related to COVID-19].” Reacting to this heightened risk, the guidance issued by CMS and the CDC aims to aggressively slow the spread of COVID-19 among the nation’s most susceptible population while, at the same time, keeping such individuals connected with family and loved ones.

Read on for six key points nursing homes should take away from this recent guidance.

1. The CDC created a tool to help nursing homes assess and improve their COVID-19 response plans. The CDC created a checklist that nursing homes and other long-term care facilities can use to improve their preparedness for addressing COVID-19. Among other elements, the checklist sets forth several key areas that nursing homes should assess when developing a comprehensive response plan, including but not limited to: (i) a formal structure for planning and decision-making, and (ii) written COVID-19 preparedness plans. Specifically, the COVID-19 preparedness plan should address issues like facility communication, maintaining necessary supplies and resources, identifying and managing ill residents, handling visitors, sick leave policies and other occupational health considerations, and surge capacity for staffing, equipment, supplies and post-mortem care. Notably, the areas set forth in the checklist are not mandatory requirements, but rather, important areas to consider addressing as the virus continues to spread.

2. All nursing home facilities should immediately restrict visitors except in limited circumstances. To limit transmission of COVID-19 among nursing home residents, CMS and the CDC recommend that nursing home facilities restrict all visitors, volunteers and non-essential healthcare personnel from entering the facility except in limited circumstances (such as compassionate or end-of-life situations). Further, even in an end-of-life situation, whether to allow a visitor to enter should be made on a case-by-case basis.

CMS advises that nursing homes take the following precautions for any visitor who is allowed to enter: (i) carefully screen visitors prior to entry for fever or respiratory symptoms and restrict those with respiratory infection symptoms from entering the facility, even in end-of-life situations; (ii) limit visitors to a specific room in the nursing home during their visit; and (iii) instruct them on, and require visitors to perform, proper hand hygiene, limit surface contact and use personal protective equipment (PPE), including face masks, at all times.

Nursing homes should inform any permitted visitors to monitor themselves, for a minimum of 14 days after their visit, for any indications and symptoms of a respiratory infection and advise them to self-isolate and promptly contact a healthcare provider if symptoms arise. Further, the visitor should alert the nursing home of the date on which such person was in the facility, the people with whom he or she had contact, and the areas in the building where he or she visited. The nursing home is responsible for screening anyone who came into contact with that visitor and completing all other necessary activities.

Notwithstanding the above, although CMS recently halted non-emergency surveys, nursing homes must allow surveyors to enter the building unless a surveyor shows symptoms of a respiratory infection or has a fever. CMS also recommends that nursing homes follow CDC guidelines before restricting facility access to healthcare workers who provide care to nursing home residents (e.g., hospice workers, EMS personnel and dialysis technicians). In light of these restrictions, facilities should consider alternate means of visitation to keep residents connected to family and friends, such as virtual communications and regular phone visits.

3. Nursing homes should follow CDC guidelines when determining whether (i) to transfer a resident to a hospital and (ii) to accept from a hospital a resident who was diagnosed with COVID-19. CMS recognizes that, while it may be appropriate for some nursing home residents to remain in the facility if symptoms are mild and the facility can follow CDC-recommended infection prevention and control practices, a hospital transfer may become necessary if more severe symptoms develop. If a transfer becomes necessary, the nursing home should alert emergency medical services and the receiving hospital of the resident’s diagnosis (or potential diagnosis) prior to the transfer. Additional precautions, such as placing a face mask on the resident and keeping the resident isolated until transfer, should also be taken.

In terms of accepting residents, CMS notes that nursing homes should continue to admit any individuals they normally would admit to their facility, including individuals from hospitals at which a case of COVID-19 was/is present. Notwithstanding, residents diagnosed with COVID-19 who are still under transmission-based precautions should be accepted only if the facility can adhere to the CDC’s guidance for transmission-based precautions. To the extent possible, nursing homes should designate a unit or wing where only residents coming or returning from a hospital should stay until they’ve shown no symptoms for 14 days.

4. Nursing homes should take additional precautions to slow the spread of COVID-19. In addition to the above-listed guidance, facilities are encouraged to enact the following precautionary measures to protect residents and third parties from the spread of COVID-19 in their buildings:

  1. Provide proper instructions to visitors on hand hygiene and use of PPE when in a resident’s room, and limiting contact with surfaces to prevent exposure.
  2. Identify staff who work at multiple facilities and actively screen and restrict them to ensure they are not putting the nursing home at risk for introducing COVID-19.
  3. Review and revise how to interact with vendors when receiving supplies. For example, facilities are encouraged to set up designated drop-off locations so vendors do not need to enter the facility to bring in supplies.
  4. Cancel communal dining and all group activities. Remind residents of the importance of social distancing.
  5. Increase infection-control procedures, including providing hand sanitizer and handwashing supplies, providing PPE with appropriate disposal receptacles near the exit inside residents’ rooms, and ensuring that hospital-grade disinfectants are used on shared equipment and surfaces with frequent contact.

5. Nursing homes should properly manage staff members with respiratory symptoms. It is important to ensure the safety of nursing home healthcare personnel. First, facilities should institute non-punitive and reasonable sick leave policies that are in line with public health recommendations. Further, they should screen all staff at the beginning of their shifts for fever and respiratory symptoms and check their temperature. Facilities should document any shortness of breath, new or change in cough, and any evidence of sore throat. If a staff member is ill or develops respiratory symptoms or a fever while at work, then he or she should put on a face mask, speak to a supervisor and leave the facility.

6. CMS will make allowances for nursing homes that face supply shortages. Similar to the approach taken with home health agencies (discussed in a recent McGuireWoods alert), CMS has directed state and federal surveyors not to cite nursing home facilities that are unable to provide certain supplies (e.g., PPE, respirators and surgical masks) due to supply shortages. Nursing home facilities are expected, however, to proactively mitigate these supply shortages (e.g., practice effective handwashing techniques) and optimize current supplies whenever possible. Facilities should contact their local and state public health agencies in the event there is a supply shortage.

While this alert focuses on nursing home guidance, CMS’ guidance for hospice agencies is similar in nature, and CMS and the CDC may issue additional or updated guidance for healthcare providers as the COVID-19 pandemic continues to rapidly evolve. CMS encourages nursing homes to regularly check the CDC’s website for critical updates, including guidance for use of PPE, and the CDC continues to update its long-term care facilities/nursing homes guidance page as new and additional recommendations become available. Accordingly, providers should continue to monitor any additional CMS and CDC guidance for the most up-to-date recommendations. Please contact the authors for additional information regarding how these recommendations could affect providers.

McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial coronavirus-related business and legal issues, and the firm’s COVID-19 Response Team stands ready to help clients navigate urgent and evolving legal and business issues arising from the novel coronavirus pandemic.