With Washington and Oregon governors issuing stay-at-home proclamations, many independent living communities are asking what this means for their residents and their ability to “enforce” these proclamations. The tension lies between not providing licensed health care and the desire to protect residents, particularly in those communities where independent living and assisted living residents may co-exist. The following are some frequently asked questions and our advice based on current CDC and state guidance, which can change in response to rapidly changing events:
1. Do you have to admit a new/prospective resident who is COVID-19 positive into your independent living community?
Probably not, because they pose a direct threat to the health safety of individuals in the community, but you should consult with your attorney before denying admission.
Most independent living settings are subject to federal and state Fair Housing Acts. The FHA prohibits discrimination in housing based on a protected class, one of those is having or being perceived to have a disability. Illness from COVID-19 may be considered a disability, as FHA defines “disability” broadly.
Notwithstanding the prohibition, FHA does not protect an individual whose residency would be a direct threat to the health or safety of other individuals, or who might cause substantial physical damage to others’ property, unless the threat or risk can be eliminated or significantly reduced by a reasonable accommodation.
2. What if the resident becomes sick, goes to the hospital or tests positive after moving in, what do we do? Do we have to allow a COVID-19 positive resident to come back to community?
Yes, you would probably have to allow them back to the community because they have a legal right to live there under the residency agreement and state law if they did not terminate their residency agreement. However, there are interventions that may be put into place to mitigate the risk this person poses to your other residents and staff, and other possible solutions. For example, returning with self-quarantine, the use of outside care providers, or moving the resident to an area to self-isolate are options to consider.
3. How do we best protect our independent living residents?
Since March 16, in Oregon and March 10, in Washington, long term care communities have had visitor restrictions in place to help prevent the spread of COVID-19. Both states have now expanded those measures in the form of “stay at home” orders that would apply to independent living. The following are state-specific proclamations and restrictions applicable to independent living:
Oregon Executive Order No. 20-12:
Washington Proclamation 20-25:
4. Has the CDC issued any guidance to help keep our independent living residents safe during this outbreak?
Yes, the CDC issued guidance specific for senior living communities. You can find that guidance here. In a nutshell, the CDC is recommending you do the following:
5. Can we post a notice on the door if someone is quarantined?
We recommend that you not post a notice on the resident’s door unless you obtain the resident’s permission to do so. The resident may also withdraw permission at any time.
6. Can the independent living provider disclose to other residents that a resident has tested positive?
To protect the privacy of residents, you must not disclose resident names or identifiers unless they give you permission to do so. You can generally say that “We have X number of cases in our community,” without disclosing the resident’s name.
7. Can we require a resident to notify us if they get sick?
Yes, you should require a sick resident to notify the Executive Director so they can take steps to protect staff and residents in the community.
8. Now that there is a stay-at-home proclamation, can we prevent residents from leaving the community? Should we allow them back in? Should we screen them?
No, a community cannot prevent or otherwise restrain a resident from leaving the community. However, the community should regularly communicate the stay at home proclamation as requiring residents to stay in their apartment as much as possible. If a resident elects to nonetheless leave the community, the resident should be allowed back but screened upon their return.
For additional employment and operational guidance on COVID-19 relating to independent living, assisted living communities, or skilled nursing facilities, please stay tuned for additional updates or contact us directly.
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