Since February 6, 2020, the Centers for Medicare and Medicaid  (CMS) issued official Coronavirus (COVID-19) guidance for health care providers in all care settings to implement in an effort to control the rate of COVID-19 transmission. However, a special focus is on nursing facilities because these facilities house the country’s population most susceptible to COVID-19. In the CDC’s March 18, 2020 Morbidity and Mortality Weekly Report (MMWR), the agency highlights the COVID-19 outbreak at a nursing home in King County, Seattle, Washington, in which 81 of the 130 residents (62%) contracted COVID-19, and 49 of those residents were hospitalized. The median age of the infected residents was 81 years old. To date, 80% of deaths related to COVID-19 are of persons 65 years old or greater.  Therefore, it is imperative nursing homes take drastic measures to reduce the risk of severe illness or death associated with COVID-19. Husch Blackwell’s answers to the Frequently Asked Questions below follow the current CDC and CMS guidance which outlines these drastic measures.

  1. Is there mandatory federal guidance for nursing facilities?

Yes. CMS issued three memoranda of COVID-19 guidance specific to nursing facilities with each memorandum superseding the prior one. State agencies that govern licensing or certification may also provide their own recommendations for limiting the transmission of COVID-19 in nursing homes, so facilities should routinely check information posted by those sources in addition to CMS.

The most recent CMS guidance, issued March 13, 2020, requires, among other things, that nursing facilities:

  • Restrict visitors and other non-essential health care personnel.
  • Cancel communal dining and all group activities, such as internal and external group activities.
  • Implement active screening of residents and staff for fever and respiratory symptoms.
  • Remind residents to practice social distancing and perform frequent hand hygiene.
  • Screen all staff at the beginning of their shift for fever and respiratory symptoms by taking their temperature and documenting any absence of shortness of breath, new or change in cough, and sore throat (and, if they are ill, requiring that staff put on a facemask and self-isolate at home for 14 days).
  1. Will state surveys of nursing facilities continue as normal?

No. On March 4, 2020, CMS issued guidance specifically to state surveyors detailing its plans to immediately suspend survey activities. CMS indicated its motivation in doing so was to free up the time and resources of surveyors to deal with the COVID-19 outbreak. Specifically, CMS limited survey activity as follows (in order of priority):

  • Immediate jeopardy complaints and abuse and neglect allegations
  • Infection control complaints, particularly in nursing facilities with potential COVID-19 or respiratory illnesses
  • Recertification surveys
  • Substantial compliance re-visits
  • Survey of nursing facilities with history of immediate jeopardy infection-related deficiencies in the past three years
  • Survey of dialysis centers with history of infection-related deficiencies

Nursing facilities are still required to follow the conditions of participation under 42 C.F.R. Subpart B, including mandatory self-reporting obligations to state agencies, absent an applicable Section 1135 Waiver.

  1. Who can nursing homes restrict from entering the facility?

CMS’ March 13 guidance notes that essential personnel  includes the facility’s nurses, technicians, hospice services contractors , surveyors, EMS personnel, and dialysis technicians.  Visits from friends and family are generally prohibited; there is an exception for compassionate care situations, such as end-of-life visit.  Nursing facilities must still screen all individuals before entering the facility (including essential personnel) and deny entry to any persons who have a fever, cough, or shortness of breath. All individuals permitted to enter the facility must perform hand hygiene and use personal protective equipment (PPE) as appropriate. Compassionate care visitors and hospice personnel are limited to the resident’s room. Facilities are expected to notify all other potential visitors to defer visitation until further notice (through signage, calls, letters, etc.).

For more information regarding the impact of visitor restrictions on hospice providers, see Husch Blackwell’s advice and guidance on this issue:

COVID-19 and Hospice: Navigating and Troubleshooting Coronavirus Challenges

Tools for Your Hospice Tool Box:  If Nursing Facilities Are Improperly Restricting Access to Hospice Personnel during the COVID-19 Pandemic, We Have a Tool That Can Help

Guidance for Hospice Providers to Address the Visitors Ban Imposed by Nursing Facilities to Reduce the Spread of COVID-19

  1. How can nursing facilities respond to employee health, compensation, and workplace shortage issues?

Husch Blackwell’s labor and employment team offers advice and guidance concerning employment issues during the pandemic:

What Employers Need to Know About the Families First Coronavirus Response Act

Workplace Issues and COVID-19 – Health Inquiries, Medical Exams, Exclusions from the Workplace and Compensation Issues

Your Employee Tested Positive for COVID-19. Is that an OSHA-recordable illness?

Coronavirus/COVID-19: Update for Employers

  1. What if a resident develops signs and symptoms of a respiratory illness?

The CDC’s interim guidance issued February 29, 2020, prescribes the infection prevention and control strategies long-term care providers should use.  First, the nursing facility should immediately isolate the resident to prevent other residents from being exposed. Examples include relocating the roommate of the suspected COVID-19 resident and requiring the sick resident to remain in his or her room. These residents should also be given face masks to the extent they are available and/or will not compromise the resident’s respiratory function. Any staff members coming into contact with that resident should continue to perform hand hygiene, but also wear gowns, masks, gloves, and eyewear, if available, and dispose such protective personal equipment in the trash can prior to leaving the resident’s room.  As with any resident change of condition required by the conditions of participation at 42 C.F.R. 483.10(g), facilities are required to notify the resident’s attending physician and representative, if applicable. The physician should use their clinical judgment and CDC’s current guidance for evaluating the resident for COVID-19 testing.  Finally, the nursing facility should also contact the health department of their county or state to receive further guidance as testing criteria varies from state-to-state and changes by the hour.

  1. What guidance is there for assisted living facilities (ALFs)?

Husch Blackwell’s post-acute care team published an article with similar guidance that also addresses the unique nuances between nursing facilities and ALFs.

  1. Does Husch Blackwell have additional COVID-19 resources?

Absolutely! Husch Blackwell developed an entire webpage dedicated to address various COVID-19 concerns across each industry we serve. We also have a dedicated e-mail address where more specific questions can be sent.