“Opening Up”: Don’t Forget About Resident Rights as you Reopen 

May, 2020 - Alexander L. Turner, Wesley A. Shumway

The curve has flattened, and all fifty states are at least partially reopened. This raises a number of questions about how your facility should proceed with reopening while continuing to protect not only your residents' health, but also their rights. Both failing to meet recommended guidelines and exceeding the guidelines can leave your facility vulnerable for future governmental action and lawsuits. This article is designed to help your facility navigate the reopening and construct a plan that balances residents' safety and residents' rights.
Protecting residents is a nursing home’s ultimate duty. With phased reopening set to take place, facilities should tailor policies and procedures to adhere to state-level implementation of recent federal guidelines. However, in developing policies and procedures, your facility must keep in mind not only resident safety, but also how those policies and procedures affect residents’ rights.
State and federal statutes and regulations generally protect residents’ right to visitation, and exceeding visitation limitations provided for in statutes, regulations, or guidance potentially can be deemed a violation of residents’ rights. In fact, the guidelines discussed below echo the importance of residents’ ability to socialize, explaining that the guidelines’ plans “include[] efforts to maintain rigorous infection prevention and control, as well as resident social engagements and quality of life.” Essentially, residents safety and residents’ rights must be balanced.
Thus, while your facility may, understandably, want to exceed state or federal guidance by implementing stricter visitation protocols than those provided in the guidelines in order to protect your residents, doing so could expose the facility to increased risk of lawsuits for violation of residents’ rights. Therefore, your facility should plan to develop policies and procedures that strictly follow, as opposed to exceed, state and federal reopening guidelines for visitation. Following, but not exceeding, reopening guidelines will best balance the desire to protect residents, while avoiding possible litigation regarding residents’ rights.
The Centers for Medicare & Medicaid Services issued new guidelines to state and local officials regarding phased reopening of nursing homes.
On May 18, 2020, CMS issued guidelines to state and local officials providing recommended phases for reopening of Medicare/Medicaid certified nursing homes. The guidelines provide the following information to state and local officials:
  1. criteria for relaxing restrictions and mitigating the risk of COVID-19 resurgence;
  2. considerations related to visitation and services at facilities; and
  3. recommendations for restoring survey activities through each phase of opening up.
The guidelines leave it up to the states on how they will implement the recommendations, but provide illustrations of how implementation could work. For example, states can require all facilities to pass through a phase at the same time once all facilities in the state meet the next phase’s requirements. Alternatively, states can allow facilities in certain regions or counties to enter a phase at the same time. Finally, states can permit nursing homes individually to move through the phases based on each nursing home’s ability to meet the criteria to move to the next phase.
The guidelines also provide three phases for gradually reopening nursing homes. However, the guidelines explain that “[n]ursing homes should not advance through any phases of reopening or relax any restrictions until all residents and staff have received a base-line test, and the appropriate actions are taken based on the results.” The phased reopening recommended by CMS is as follows:
  • Phase 1 is restrictive, with limitations on visitation and outside services. The restrictions currently in place prohibiting outside visitation, except for compassionate care, and non-essential workers remain in place. However, communal dining and group activities for residents with negative COVID-19 tests may occur so long as appropriate social distancing, screening, and hygiene requirements are met;
  • Phase 2 is less restrictive, and can be reached if the following criteria are met:
  1. “Case status in community has met the criteria for entry into phase 2 (no rebound in cases after 14 days in phase 1)”;
  2. no new nursing home onset COVID-19 cases occur in the nursing home for 14 days;
  3. the nursing home does not experience staff shortages;
  4. the nursing home has a sufficient amount of disinfecting and cleaning supplies, as well as personal protective equipment;
  5. the nursing home has access to sufficient COVID-19 testing; and
  6. referral hospitals must have capacity on wards and in ICUs for residents.

Under Phase 2, visitation restrictions remain in place, but there is a relaxation of the restrictions on non-essential workers and communal activities so long as appropriate social distancing, screening, and hygiene requirements are met; and
  • Phase 3 allows for increased visitation and services. Phase 3 can be reached if:
  1. “Community case status meets criteria for entry to phase 3 (no rebound in cases during phase 2)”;
  2. no new nursing home onset COVID-19 cases have occurred in the nursing home for 28 days;
  3. there are no staff shortages at the nursing home;
  4. the nursing home has sufficient cleaning and disinfecting supplies, and sufficient personal protective equipment;
  5. the nursing home has sufficient access to COVID-19 testing; and
  6. referral hospitals have capacity on wards and ICUs for residents.

Under Phase 3, visitation, the admission of non-essential workers, and communal activities are permitted so long as appropriate social distancing, screening, and hygiene requirements are met.
States can choose to employ a longer wait period prior to reducing restrictions “for facilities that have had a significant outbreak of COVID-19 cases, facilities with a history of noncompliance with infection control requirements, facilities with issues maintaining adequate staffing levels, or any other situations the state believes may warrant additional oversight or duration before being permitted to relax restrictions.”
If your facility needs help formulating its reopening plan to ensure the proper balance between residents' safety and residents' rights, or your facility would like assistance understanding the new CMS guidelines, please feel free to reach out to Spilman's Nursing Home Practice Group at any time.


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