Operators and managers of assisted living facilities (“ALFs”) and skilled nursing facilities (“SNFs”) have been dealt a tremendous responsibility to ensure the safety and welfare of their residents during the COVID-19 pandemic. To safeguard these residents, ALFs and SNFs have received varied instructions and guidance from sources within the federal government, such as the President, the Centers for Medicare and Medicaid Services, and the Centers for Disease Control and Prevention, as well as state licensure agencies, national and local associations, and internal policies and procedures, among many others. But, ALFs and SNFs also need to check on a daily basis for directives from their respective state governors.
Many state governors have invoked their executive powers to protect residents of ALFs and SNFs, since these individuals constitute one of the populations most vulnerable to the severe effects of COVID-19. The following are three examples of executive orders and proclamations issued by governors in response to the COVID-19 crisis (some of which are more detailed in scope than others). Each of these examples address visitation.
On March 16, 2020, Governor Jay Inslee issued Proclamation 20-16, titled “Statewide Limits on LTC – No Visitors.” This Proclamation, in part, prohibits “owners, administrators, operators, staff, contractors, and volunteers of [ALFs and SNFs] from allowing any person, including friends or family, to enter the facility to visit a resident.” Exceptions to this prohibition include end-of-life situations, as well as visits by attorneys, administrative law judges, advocates, or similar resident representatives. Also excepted from this prohibition are vendors who supply the facility and volunteers who work there.
Proclamation 20-16 follows Proclamation 20-06 (effective March 10, 2020), in which Governor Inslee issued specific prohibitions on activities related to the operation of ALFs and SNFs, such as the following:
- No person may visit a resident of an ALF or SNF unless that person has been screened prior to entry for signs or symptoms of COVID-19, including fever of 100.4 degrees or higher, cough, or difficulty breathing, or contact with a person with a confirmed diagnosis of COVID-19 in the last 14 days, or is under investigation for COVID-19. Precautionary measures may include, but are not limited to, wearing personal protective equipment, social distancing, or visiting in designated locations.
- No person may visit a resident of an ALF or SNF unless that person (i) shows identification; (ii) signs into a visitor’s log that includes the date, time in, and time out; and (iii) provides his or her name and contact information, including phone number and email address if available.
- Operators and staff of ALFs and SNFs must retain daily visitor logs for 30 days.
- Owners, administrators, and operators of ALFs and SNFs are prohibited from allowing a person to work or volunteer in the facility, unless that person has been screened at the start of every shift and does not show any symptoms associated with COVID-19, including a fever of 100.4 degrees or higher, a cough, or difficulty breathing.
- Owners, administrators, operators, staff, and volunteers of ALFs and SNFs are prohibited from disclosing protected and confidential health information, except as otherwise provided by law or with consent from the resident.
The visitation limitations under Proclamation 20-16 are now more restrictive than under the earlier Proclamation 20-06. This highlights the need to check for governor proclamations and executive orders on a daily basis, as requirements may change over time.
On March 23, 2020, Governor Roy Cooper issued Executive Order 120, titled “Additional Limitations on Mass Gatherings, Restrictions on Venues and Long Term Care Facilities, and Extension of School Closure Date.” Governor Cooper ordered that SNFs and adult care homes “restrict visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations, for example, an end-of-life situation.” “Essential health care personnel” are also excepted from this restriction.
According to Governor Bill Lee’s Executive Order No. 17, issued on March 22, 2020, “[p]ersons in the State of Tennessee shall not visit nursing homes . . . or assisted-living facilities, unless to provide essential assistance or to visit residents receiving imminent end-of-life care, provided such visits may be accomplished without unreasonable risk to other residents. Persons are highly encouraged to use available electronic or virtual communication to spend time with their family members, friends, loved ones, and other persons in those facilities.”
In conclusion, it is vital that ALFs and SNFs daily monitor governor-issued mandates in their states throughout the COVID-19 pandemic, as these frequently pertain to long term care providers and may modify previous mandates.
If you have specific questions or require further information, please contact Neil W. Hoffman, Ph.D. or Gregory M. Gaylis. Please refer to AGG’s Coronavirus (COVID-19) Resource Center for additional legal alerts.