CMS Releases Guidance to Re-Opening of Nursing Facilities

As states and localities begin the long process of re-opening, they need to be particularly cognizant of the unique challenges facing at risk locations like nursing facilities. With those challenges in mind, CMS recently released guidance and an accompanying press release to assist state and local officials as they begin to develop plans to re-open nursing facilities for visitation and to the general public. CMS’s guidance is intended to accompany and compliment the Trump Administration’s Guidelines for Opening Up America Again. This Client Advisory will briefly summarize and discuss the key provisions of CMS’s guidance on the phased re-opening of nursing homes.

Due to the vulnerable nature of the nursing home population, CMS recommends additional criteria, beyond the more general Guidelines for Opening Up America Again, that states should impose on nursing homes as they begin phased re-opening. These criteria are:

  • Nursing homes should not re-open or relax restrictions at all until all residents and staff have been tested for COVID-19 and appropriate action has been taken based on the results of those tests.
  • All nursing homes that experienced a significant COVID-19 outbreak should be surveyed by the state survey agency prior to re-opening to ensure they are adequately protecting residents against the transmission of COVID-19.
  • Nursing homes should remain in their highest level of vigilance as states and localities enter Phase 1 of re-opening and nursing homes should only enter Phase 1 when their surrounding communities enter Phase 2.
  • A nursing home should spend a minimum of 14 days in each phase.
  • If there is a new nursing home onset of COVID-19,[1] the nursing home must return to the highest level of vigilance and start over, regardless of which phase the surrounding community is in.
  • States may impose stricter requirements on facilities that states believe require additional oversight before they relax restrictions.

CMS has identified several key factors that state and local officials and nursing home administrators should look at as they implement phased re-opening. These factors are:

  • Case Status in the Community – State-based criteria to determine the level of community transmission and guides the State’s progression through the Phases.
  • Case Status in the Nursing Home – Absence of any new nursing home onset of COVID-19.[2]
  • Adequate Staffing – No staffing shortages or contingency staffing plan.
  • Access to Adequate Testing – The nursing facility should have a testing plan in place based on CDC guidance. This testing plan should consider:
    • Capacity for all residents to receive a COVID-19 test and the capacity for re-testing of all residents if a resident or staff person develops symptoms consistent with COVID-19 or tests positive for COVID-19.
    • Weekly testing of all residents until all residents test negative.
    • Capacity for all nursing facility staff to be tested for COVID-19 weekly.
    • Written screening protocols for all people entering the facility for any reason.
    • An arrangement with a lab to process COVID-19 tests.
    • Procedure for handling residents or staff that decline or are unable to be tested.
  • Universal Source Control – Residents and visitors wearing a cloth face covering or facemask at all times in the facility. All entrants to the facility should continue to maintain social distance and wash and sanitize their hands upon facility entrance. Facilities may want to consider continuing to prohibit visitors who will not comply with these precautions.
  • Access to Adequate Personal Protective Equipment for Staff
  • Local Hospital Capacity – Ability for the local hospital to accept transfers from nursing homes.

As discussed above, once the surrounding community moves into Phase 2 of re-opening, the nursing home can move into Phase 1 of re-opening. During Phase 1, the nursing home will remain under many of the precautionary and strict restrictions they currently have. Visitors will only be allowed in compassionate care situations, all non-essential healthcare personnel (including barbers and beauticians) are barred from the building, group and communal activities will be extremely restricted, and staff and residents will continue to be routinely screened and monitored for symptoms of COVID-19. During Phase 1, survey activity will be limited to investigation and revisits of Immediate Jeopardy findings and complaints, infection control surveys, initial certification surveys, and state-based survey priorities concerning “hot spots” of COVID-19.

After at least 14 days in Phase 1, the nursing facility can move into Phase 2 of re-opening if certain criteria are met. In order for the nursing home to move into Phase 2 the surrounding community must be in at least Phase 2 of re-opening, there must have been no new nursing home onset of COVID-19 within the last 14 days, the nursing home is adequately staffed and supplied with disinfectant and PPE, the nursing facility has adequate access to routine testing, and the local referral hospital must have adequate bed availability and capacity. In Phase 2, additional non-essential health care workers and outside contractors can be allowed in the nursing home at the nursing home’s discretion and some limited resident group activities and outings, with no more than 10 people, can occur if appropriate precautionary and social distancing measures are put into place. Otherwise, many of the restrictions remain in place including the general prohibition on visitation except in compassionate care situations.

Additionally, during Phase 2 some additional survey activity will begin to occur. State Survey Agencies will begin investigating complaints and Facility Reported Incidents again. Surveyors will prioritize such investigations in the following order:

  • Abuse or neglect,
  • Infection control including failure to comply with the new COVID-19 reporting and notification requirements,
  • Transfer or discharge violations,
  • Insufficient staffing or competency, and then
  • Other quality of care issues.

Some standard recertification survey activity will also resume during Phase 2. State surveyors will prioritize such survey activity in the following order:

  • Facilities with a significant number of COVID-19 positive cases,
  • Special Focus Facilities,
  • Special Focus Facility candidates, and then
  • Facilities that have not been surveyed in greater than 15 months and have a history of noncompliance with abuse or neglect, infection control, transfer or discharge requirements, insufficient staffing or competency, or other quality of care issues.

After 14 days in Phase 2, the nursing home can move into Phase 3 as long as the surrounding community is at least in Phase 3 and there continues to be no new nursing home onset cases of COVID-19 and the same adequacies of staffing, PPE and disinfectant supplies, testing, and referral hospital bed capacity remain in place. Visitation and volunteer entry into the facility can begin to occur in Phase 3 as long as there is appropriate screening and precautions in place. The 10-person cap on group activities and outings will be removed but appropriate social distancing must still be able to be maintained in all group activities and outings. Normal survey activity will resume during Phase 3.

CMS’s guidance allows states discretion in how they want to implement the phased re-opening of nursing homes. The guidance encourages collaboration with state and local health departments and state survey agencies to determine the proper manner and time in which to implement these guidelines. States may choose to implement these guidelines by:

  • Requiring all facilities to move through each phase at the same time (this requires all facilities to wait until all facilities have met entrance criteria for a given phase),
  • Allowing facilities in certain regions to move through each phase at the same time, or
  • Permitting individual nursing facilities to move through the phases independently.

At this time, Virginia has not yet announced which of these three approaches it will take in the phased re-opening of nursing facilities, and there has been no specific guidance applicable to assisted living facilities.

Should you, your practice, or your business have any questions about the implications of this Executive Order, please contact Peter Mellette, Nathan Mortier, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only and does not cover every aspect and requirement of the re-opening guidance. It is not intended to provide legal advice to any specific situation you might have. Individuals desiring legal advice should contact legal counsel for fact-specific and up-to-date advice.

[1] This only includes cases that originated in the nursing home and excludes nursing home admissions from a hospital where the individual was known to be COVID-19 positive or becomes COVID-19 positive with 14 days of nursing facility admission.

[2] See footnote 1.

Categories: Client Advisory