CMS PROVIDES GUIDANCE ON REOPENING NURSING HOMES

Written by: Drew Graham, Esq.

Most nursing homes have been functioning at the highest level of vigilance for several weeks, restricting visitation, entry of non-essential healthcare personnel, and residents’ group activities. On May 18, 2020, the Centers for Medicare and Medicaid Services (“CMS”) offered its first recommendations for reopening nursing homes in the wake of COVID-19.

Factors to Consider
CMS stresses that reopening plans should be made in conjunction with state and local leaders, considering the readiness of each individual state, local community, and facility, along with state-specific orders then in effect. At a minimum, each nursing home must consider:

• • • COVID-19 cases in the community: number of new cases, hospitalizations, and deaths;
    • COVID-19 cases in the nursing home: number of new cases originating in the facility;
    • Staffing levels: adequacy of staffing absent contingency plans;
    • Testing levels: including
      • written screening protocols for residents, staff, and other people entering the facility,
      • capacity for testing all residents and staff,
      • an arrangement with a qualified laboratory to process tests, and
      • a procedure for addressing residents and staff who refuse to be tested
    • Availability of Personal Protective Equipment (“PPE”) for staff;
    • Implementation of universal source control: face masks, handwashing or sanitizing facilities for visitors, and social distancing requirements; and
    • Local hospital capacity

 

Three Phases of Reopening
CMS outlines three phases of reopening, noting that nursing homes may function at a different phase than their surrounding communities. Some states may choose to have a longer waiting period (e.g., 28 days rather than 14) between phases. In all phases, 100% of residents and people entering the facility are screened for infection.

In Phase 1 (the state on May 18, 2020), most facilities are at “their highest level of vigilance, regardless of transmission within their communities.”

• • • Visitation is generally prohibited;
    • Non-essential healthcare personnel are restricted;
    • Group activities (including communal dining) are restricted; and
    • State surveys are limited to Immediate Jeopardy surveys, focused infection control surveys, initial certification surveys, and surveys made on the basis of state priorities (e.g. “hot spot” surveys.)

 

Phase 2 may begin after fourteen days of no new cases originating in the nursing home and no rebound in community cases if the nursing home has adequate staff, PPE, access to testing, and bed capacity at local hospitals.

• • • Visitation remains prohibited;
    • Limited numbers of non-essential healthcare personnel may enter with appropriate universal source control;
    • Limited group activities (including communal dining) may take place with appropriate universal source control; and
    • State surveys will include all of those in Phase 1 as well as surveys related to actual harm to residents.

 

Phase 3 may begin after fourteen additional days of no new cases originating in the nursing home and no rebound in community cases. Again, the facility must have adequate staff, PPE, access to testing, and bed capacity at local hospitals.

• • • Visitation is permitted with universal source control;
    • Non-essential healthcare personnel visits are permitted with universal source control;
    • Group activities (including communal dining) are permitted with universal source control; and
    • State surveys will include all normal survey operations as well as state priorities.

 

Recommendations for States
In addition, CMS encourages state leaders to collaborate with their survey agency, state health authorities, and local health authorities to fine-tune phases. That collaboration will be unique to each state, but it might include state-wide reopening, regional reopening (on a region-by-region or county-by-county basis), or individual reopening (on a facility-by-facility basis.)

Conclusion
Reopening nursing homes will be a controlled process, balancing the effects of COVID-19 within states, local communities, and specific nursing homes. Experienced medical litigators can help the health-care community best manage risk in this volatile time.