Health Care Law Blog

Any reference to “facilities” in the Order is referring to residential care facilities. Residential care facilities means a nursing home, home for the aged, adult foster care facility, hospice facility, substance use disorder residential facility, and assisted living facility. It does not include independent living facilities.

Residential care facilities must try to allow communal dining and group activities for residents who are fully recovered from COVID-19, are not in isolation, or are not otherwise under observation for symptoms of COVID-19. Any dining or group activities must have adequate physical distancing, and residents must wear masks and have access to hand hygiene.

Residential care facilities must continue to inform employees and residents of the presence of an employee or resident confirmed to have COVID-19 as soon as reasonably possible, but within 12 hours after identification.  Within 24 hours after identification of a confirmed COVID-19 positive employee or resident, the facility must: inform legal guardians for all residents, post a visible notice near the main entrance of the facility, adopt a protocol to inform prospective residents and staff, contact the local health department, and support contract tracing efforts as requested. The posted notice and protocol for informing prospective residents and staff must continue until 14 days after the last positive COVID-19 test result for an employee or resident in the facility. Although not subject to the other requirements in the Order, independent living facilities are required to contact the local health department following a confirmed COVID-19 positive employee or resident and support contact tracing efforts.

Facilities must support and accommodate residents receiving visitors.  This includes indoor and outdoor visitation. Generally, visitation may only occur once the facility meets these criteria:

• No new COVID-19 cases have originated in the facility within the past 14 days.
• The facility is not currently conducting outbreak testing.
• The local health department or MDHHS has not prohibited visitation.
• The facility complies with the applicable testing requirements.

Visits must be by appointment only. Facilities may impose reasonable time limits and must require a log showing visitors’ arrival and departure times, contact information, and acknowledgment that they will notify the facility if they develop COVID-19 symptoms within 14 days after visiting. Facilities must limit the number of visitors per scheduled visit to two persons and exclude any visitors unwilling to wear a face mask.

Facilities must perform a health evaluation of all visitors each time they seek to enter the facility, which includes checking for a fever, other symptoms consistent with COVID-19, and any known exposure. Except in limited circumstances, visitors must follow physical distancing requirements and refrain from any physical contact. If the facility is offering outdoor visitation, it must ensure that the area allows for social distancing and adequate protection from the weather. Additionally, the Order provides certain situations where visitation should be accommodated even when the facility cannot meet the requirements imposed in the Order.

The testing requirements differ depending upon the type of facility. Nursing homes, homes for the aged, adult foster care facilities licensed to care for 13 individuals or more, must ensure all visitors participating in indoor visitation are tested. Adult foster care homes licensed for 12 or fewer residents, hospice facilities, substance use disorder residential facilities and assisted living facilities are encouraged, but not required, to implement testing protocols for visitors and staff. For facilities required to test visitors prior to entry for indoor visitation, testing is not required prior to window visits, outdoor visits, and visits at the end of life. Testing is not required for visitors who are age 13 or younger. Any required testing should be conducted at the point of entry whenever possible.

Foster Swift’s health care attorneys are available to assist in navigating the visitation, testing, and implementation requirements for residential care facilities. Please contact:

• Jennifer Van Regenmorter | 616.796.2502 | jvanregenmorter@fosterswift.com
• Caroline Renner | 616.726.2211 | crenner@fosterswift.com

While the information in this article is accurate at time of publication, the laws and regulations surrounding COVID-19 are constantly evolving. Please consult your attorney or advisor to make sure you have the most up to date information before taking action.