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.
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.
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.
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.
Before proceeding, please note: If you are not a current client of Lane Powell PC, please do not include any information in this email that you or someone else considers to be confidential or secret in nature. Prior to the establishment of a lawyer-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure.