Health Care Law Blog

Under Executive Order 2020-50, long term care facilities include nursing homes, homes for the aged, adult foster care facilities, and assisted living facilities. While Executive Order 2020-50 is in effect, a long term care facility is not permitted to evict or involuntarily discharge a resident for nonpayment, or otherwise deny a resident access to the facility except as otherwise provided in the order. However, Executive Order 2020-50 does not impact a resident’s obligation to pay under an admission contract with the facility.

Many long term care facility residents obtained housing outside of a long term care facility, such as living with a family member, out of concern for their health and safety during the declared state of emergency relating to COVID-19. Executive Order 2020-50 provides residents the right to return to the facility, as would have been provided if they had been hospitalized. As long as the long term care facility can meet the medical needs of the resident, and capacity allows, the resident must be accepted back at the facility.

Reporting Requirements

If a long term care facility identifies a COVID-19 affected resident, it must inform employees as soon as reasonably possible and no later than 12 hours after identification. The facility must report the presence of the COVID-19 affected resident to the local health department within 24 hours. The facility must also report all presumed positive COVID-19 cases to the Department of Health and Human Services (DHHS). A resident is considered a “COVID-19 affected resident” if they have tested positive for COVID-19, are under investigation for having COVID-19, or display one or more of the principal symptoms of COVID-19.

On April 19, 2020, the Centers for Medicare and Medicaid Services (CMS) stated that in rulemaking to follow, nursing homes will be required to notify their residents and the residents’ representatives on the conditions of the facility. At a minimum, nursing homes will be required to inform residents within 12 hours of the occurrence of a single COVID-19 infection, or if three or more residents and staff have new-onset respiratory symptoms within 72 hours. Under the upcoming requirements, a nursing home must provide these updates weekly, or each subsequent time there is an incident to report. Failure to abide by these reporting requirements may result in enforcement actions against the facility. While CMS has not provided an effective date, the guidance recommends the survey and certification staff be informed of these requirements immediately. CMS’ guidance on these reporting requirements is available here.

Regional Hubs and Dedicated Units

A nursing home with a census below 80% is required to designate a unit dedicated to caring for COVID-19 affected residents. The nursing home must provide appropriate PPE, as available, for employees who provide care in the dedicated unit. If a nursing home provider operates multiple facilities, it may designate a facility as its dedicated unit. A regional hub is a nursing home designated by DHHS as a dedicated facility to temporarily and exclusively provide care to COVID-19 affected residents.

A long term care facility must transfer the COVID-19 affected resident to its dedicated unit, if it has one. If it does not have one, it must transfer the resident to a regional hub, if one is available to accept the transfer. If a regional hub is not available, the facility must attempt to send the COVID-19 affected resident to a hospital within the state. Finally, if no hospital bed is available, the facility must transfer the resident to an alternate care facility. An alternate care facility is any facility activated by the state to provide relief for hospitals that surge past their capacity, such as the TCF Regional Care Center.

Hospital Discharge of COVID-19 Affected Residents

Once a long term care facility resident who was hospitalized becomes medically stable and eligible for discharge, the hospital must discharge the resident to the long term care facility where the resident previously resided, if the facility has a dedicated unit and it has available bed capacity. If the prior facility is not available, the hospital must discharge the resident to a regional hub, if there is available bed capacity. If a regional hub is not available, the hospital must transfer the resident to an alternate care facility with available bed capacity.

Strict compliance with the requirements and procedures for bed holds, pre-transfer, and pre-discharge is temporarily suspended as relates to the transfer or discharge of a long term care facility resident made under Executive Order 2020-50.

Executive Order 2020-50 is available here. Contact a member of Foster Swift’s health care group with any questions on reporting or discharge requirements for COVID-19 affected residents.

Jennifer Van Regenmorter; jvanregenmorter@fosterswift.com

Caroline Renner; crenner@fosterswift.com