March 13, 2020

On March 9, 2020, the Centers for Medicare and Medicaid Services (“CMS”) issued a Quality, Safety & Oversight memorandum (the “Memorandum”) addressing alterations to the survey and certification process for nursing homes in response to the spread of Coronavirus. The stated purpose of this Memorandum is to assist nursing homes in controlling and preventing further spread of the virus. Beyond providing broad recommendations for the steps facilities can take to address the outbreak, the Memorandum provides specific guidance related to two major areas: facility visitation procedures and acceptance/transfer of residents who have been infected.


Although framed as non-binding guidance, facilities are advised to adopt or prepare to adopt the recommendations set forth in the Memorandum in order to curb the further spread of the Coronavirus, and to ensure preparedness in the event that any of these recommendations become mandatory.


Beyond monitoring staff and residents for COVID-19 symptoms, CMS advises that each facility take the following steps:

1. Review online resources through the CDC and CMS websites for facility infection prevention/control training;

2. Implement screening processes for facility staff to ensure staff members experiencing flu-like symptoms cease providing direct care to patients;

3. Ensure that the local health department is appropriately contacted in the event of a significant increase in the number of respiratory illnesses among residents or staff, or in the event that a resident or staff member providing care to residents is suspected of having contracted the Coronavirus;  

4. Develop a coordinated communication plan to provide updates to staff, residents, and visitors. Note that any communications regarding confirmed COVID-19 cases must adhere to protection of resident confidential information. Staff should be instructed that communicating the identity of an infected individual without proper consent may violate HIPAA; and

5. Plan for and mitigate anticipated supply or personnel shortages in the coming months through direct communications with critical vendors.  


As the Memorandum notes, facilities may restrict and limit visitation rights for reasonable clinical and safety reasons. Consistent with that principle and in light of the Coronavirus outbreak, CMS suggests facilities discourage visitation generally or restrict entry for individuals who: are exhibiting signs of respiratory infection; have had contact with someone with a respiratory illness or confirmed diagnosis of COVID-19 or who is under investigation for potential infection; have traveled internationally within the last 14 days to countries with sustained community-based infections; or reside in an area where community-based spread of the virus is occurring. CMS further recommends limiting visitation for facilities located in, or adjacent to, counties where Coronavirus infection has been detected. Other safety measures relating to visitation include increased and conspicuous signage discouraging visits at the entry and exit points of the facility, resident/visitor temperature checks to monitor for fever symptoms, increased access to hand sanitizer, prominently displayed instructions for visitors regarding standard precautions, limitations on visitors’ movements within the facility (e.g., limiting visitation to resident rooms), and availability of Personal Protective Equipment to visitors and staff. In determining the extent to which visitation should be discouraged, limited, or restricted, facilities may evaluate their capacity to monitor visitors and ensure they are observing standard infection control precautions. To the extent such monitoring is impracticable, facilities may consider implementing visitation limits consistent with their capabilities. Additionally, facilities may consider alternatives to direct visitation, including videoconferences, phone calls (noting that this may involve a phone sanitation protocol if using a facility phone line), a regular listserv that provides updates to families, or phone-line voice recordings to provide updates as to whether it is safe to visit (note that any such recorded media may need to be secured or require encryption under HIPAA if PHI is included).


For current residents suspected of infection or a confirmed diagnosis, immediate discharge from the facility may not be required if the facility has resources to meet such residents’ needs and ensure proper precautions. However, it is critical that the facility contact the local health department regarding such residents. Further, pending a potential transfer or discharge, the resident should be provided a facemask and isolated until transfer can be completed. If a transfer is ultimately deemed necessary, EMS personnel and the receiving facility should be notified of the patient’s suspected or confirmed Coronavirus infection and appropriate precautions should be observed (e.g. facemask, etc.). If hospitalization is not required, where medically appropriate, an infected resident may be discharged home, so long as such discharge is coordinated with state or local public health authorities. Concerning incoming residents, a nursing home may accept an individual diagnosed with COVID-19 only when the facility is able to abide by CDC guidance for Transmission-Based Precautions. Any such admission should be coordinated with local health authorities.

The above discussion is an overview of the Memorandum, but is not an exhaustive summary of all recommendations included. If you have any questions regarding further details included in the Memorandum or any of the information above, please contact Hancock Daniel’s Long-Term Care & Post-Acute Care team.

The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel & Johnson, P.C., is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel & Johnson, P.C. be liable for any direct, indirect, or consequential damages resulting from the use of this material.

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