|Legal Considerations for Senior Care and Living Providers in Light of COVID-19|
With news that a nursing facility in Kirkland, Washington has multiple confirmed cases of COVID-19, legal compliance is likely at the top of senior care and living providers’ minds. Having a plan to mitigate risk and ensuring compliance with rules and regulations is important during situations such as this.
This guidance covers legal and regulatory considerations during the COVID-19 outbreak. For clinical recommendations and prevention strategies, please refer to CDC.gov.
Crisis Communications Are Key
First, prepare a communications plan now by designating your communications point person and team before a crisis hits your community. Communications with media, residents, family, staff and regulatory agencies will happen simultaneously. Meet with your team to identify who is going to manage these communications, and make sure your staff know to whom to refer questions and media inquiries.
Second, consider consultants to work with to ensure you are meeting standards of practice and to assist in your external communications. For example, you may need an infection preventionist to assist with communicating with federal health agencies and hospitals. Simultaneously, a media consultant may be necessary to help manage your external communications. If this crisis affects your community, not only should you prepare a media statement, but consider drafting talking points for your different audiences such as employees, family and residents. Expect requests by media for interviews. Do not give a spur of the moment, unprepared interview. It is fair to let media know you will get back to them when you have some information as it is developing. Your communication plan should also include written and verbal communication with families and residents. This requires a coordinated effort through your point person and communications team.
Finally, while you are managing communications, you may face regulatory enforcement, subpoenas and notice of civil lawsuits. You may need to notify your insurance carrier and lender. Crisis communications requires a team effort. Engage your counsel to collaborate with your infection preventionists and other consultants to help you work through these simultaneous channels.
You can find a link here to Lane Powell’s Crisis Management Checklist to help you manage this situation.
Don’t Forget About Resident Rights and HIPAA Compliance
Sometimes when faced with crisis situations, we tend to forget residents are entitled to privacy in both communications and care they receive. Pursuant to state and federal resident rights (42 CFR 483.(h)), as applicable, residents are entitled to personal privacy and confidentiality of their personal and medical records. These rights continue to exist during a crisis situation.
This is a good time to remind staff to continue to maintain resident confidentiality especially in light of media inquiries. Staff may also be tempted to discuss a resident’s situation with friends and family members given the novel issues posed by COVID-19.
Moreover, if your community or facility is subject to HIPAA, you have additional obligations to maintain a resident’s protected health information confidential.
HIPAA (42 CFR 164.512(b)(1)(i)) does permit disclosures to health authority agencies such as the state department of health and CDC without having residents authorize disclosures to prevent or control disease, injury or disability. You should remind your staff that they should cooperate with these agencies and provide them the information necessary to address the situation.
HIPAA expressly defers to the professional judgment of health professionals in making determinations about the nature and severity of the threat to health or safety posed by a patient. HIPAA is not intended to second guess a health professional’s good faith belief that a patient poses a serious and imminent threat to the health or safety of the patient or others, and that the situation requires the disclosure of patient information to prevent or lessen the threat. Health care providers may disclose the necessary protected health information to anyone who is in a position to prevent or lessen the threatened harm, including family, friends, caregivers and law enforcement, without a patient’s permission.
Lastly, when communicating with the media, you cannot disclose any information that may identify the resident, including location within the facility, without the permission of the resident. If your community maintains a directory and the resident has given you permission, you may only then include the resident’s name, location, health condition expressed in general terms that does not communicate specific medical information about the individual, and religious affiliation. With the exception of religious affiliation, you may communicate this information to third parties, including media. However, the resident must be informed about the information to be included in the directory, and to whom the information may be released, and must have the opportunity to restrict the information or to whom it is disclosed, or opt out of being included in the directory. If any doubt, don’t disclose.
The fluctuating COVID-19 landscape has also created unique employment law compliance challenges for long-term care employers. For now, we recommend you take proactive action to comply with the interim “recommended strategies” for employers that the CDC announced in late February. Those strategies include:
Because COVID-19 issues continue to develop, we also recommend that you monitor guidance from CDC, CMS, OSHA, and state and local agencies to determine if employment-related guidance or requirements are modified over time.
- Educate your staff to avoid coming to your community if they have symptoms of acute respiratory illness. The CDC also recommends the employees not return to work until they are free of fever, signs of fever and other symptoms for no less than 24 hours.
- Make sure your staff immediately notify their supervisor if they are sick. We also believe your staff should be instructed to let your supervisors know if the employee’s illness has any symptoms that could be associated with COVID-19 (i.e., fever, cough, shortness of breath).
- Make sure your community’s sick leave policies are flexible and compliant with public health guidelines. Because these guidelines are subject to change, we also suggest that you factor this into to how your workplace applies its sick leave policies — and that you make sure your staff members are informed of the leave policy.
- Anticipate that staff absences may be higher than normal. This increase in staff absence may be because staff illnesses or because your staff may need to take care of their sick children or other family members.
- Re-train your supervisors regarding compliance with related leave and nondiscrimination laws when dealing with your staff who are, or may be, infected by COVID-19. To be clear, COVID-19 is not connected with race, ethnicity or nationality. Make sure your community does not make COVID-19 related decisions (employment or otherwise) based on race or country of origin. Make sure your supervisors understand that they must protect employee privacy.
- Proactively work with your third-party staffing providers to help make sure you maintain adequate staffing levels.
- Re-educate staff and print and post posters that the CDC makes available (available here) to educate your staff on the above issues and best COVID-19 practices.
Regulatory compliance does not stop simply because of COVID-19. On the contrary, regulatory agencies are on higher alert ensuring you are taking necessary steps to prevent, detect and manage infections in your communities. Some providers are taking the added step of voluntarily stopping admissions into communities to avoid spread of infection. Of course, if you have a presumptive case of COVID-19 in your community, you should stop admissions immediately even if you have not been placed in stop placement by the regulatory agencies.
This is also a good time to evaluate your emergency preparedness plans and how you plan to manage staffing shortages as caregivers call in sick. You should also review your infection control policies and educate staff to ensure you are being as proactive as possible to mitigate the risk of infection.
Finally, you may also consider limiting visitors to your communities to help manage your risk. Keep in mind that residents do have the right under both federal and state regulations to have visitors. Generally, that right should not be limited without a health or safety reason. Given the vulnerability of the population in your communities, some state agencies are advising you treat this like the flu and allow you to limit visitors if you have a good faith reason for doing so. Oregon DHS notified both nursing facility and assisted living providers (see that notice here) that it will not take regulatory action for limiting visitors if they act in good faith when they deny the visitation. Washington DSHS advises you should follow your policies and procedures for a droplet pathogen outbreak, including screening visitors for symptoms of illness. However, a blanket denial of visitors is not advisable at this time in either Oregon or Washington. Because this is an evolving situation, you should continue to monitor state and federal agencies for updates.
Below find additional helpful links:
Oregon Health Authority
Washington State Department of Health
CDC Guide to Preparing Your Community
WHO Intro Video to Coronavirus
CDC Printable Fact Sheets for the Public
CDC Video Series, Coronavirus Prevention for Individuals
CMS: Information for Healthcare Facilities Concerning 2019 Novel Coronavirus Illness (2019-nCoV)
Health Care Professionals: Frequently asked Questions
Local Health Jurisdiction and Healthcare Provider Resources