The new coronavirus outbreak may change the way nursing home regulations are applied and enforced by the states and the federal government.
Nursing homes have many different laws and regulations that they have to follow. The regulations are very detailed and prescriptive and govern practically every aspect of the nursing home’s operations and the resident’s life there.
Some of them come from the federal government which has jurisdiction over skilled nursing facilities as the administrator of the Medicare program and the joint administrator of Medicaid. Other regulations come from the states where the nursing home is located because the state government licenses the facility.
Below are particular areas where Covid-19 presents regulatory challenges and issues for nursing homes.
In particular, nursing homes are now working under guidance provided by the CDC and CMS, the most recent of which was issued on March 13. In particular, the CDC’s guidance addressed infection control in a health-care setting and the CMS’ direction dealt with nursing homes specifically.
The general rule for nursing homes is that they are required to have an infection control program “designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of communicable diseases and infections.”
This requirement not only still exists during the Covid-19 outbreak, but it is now heightened based on CDC guidance. On March 13, the CDC issued guidance that gave nursing homes some additional procedures to follow in order to prevent infections in the facility.
Infection control is the major focus of much of the interim guidance that nursing homes have received. The primary goal is to keep Covid-19 from spreading throughout the nursing home as it did in a Washington state facility where 19 residents died. Here is some of what the CDC instructed nursing homes:
- Institute requirements for personal protective equipment for care providers
- Take steps to keep infected residents apart from the rest of the nursing home population
- Restrict visitor access to the facility and manage the visitors that do come
- Implement engineering and environmental controls throughout the facility
- Screen and manage providers for signs of infections
Many nursing homes already struggle with infection prevention even when not facing a deadly pandemic. Facilities are routinely cited for not taking the proper measures to sterilize equipment and ensuring that staff members keep their hands washed and the areas clean.
Now, nursing homes must take measures to heighten their infection control program and the use of personal protective equipment when necessary. Nursing homes can even be cited for not having the appropriate infection prevention equipment if they are not taking steps to acquire it or are not trying effective workarounds when there is a shortage.
The general rule for a nursing home is that a resident “has a right to receive visitors of his or her choosing at the time of his or her choosing.” The nursing home does have the ability to limit visitation under certain circumstances. Moreover, the visitors to the facility may not impose on the rights of another resident.
Given the vulnerability of the nursing home residents and the possibility that Covid-19 can spread rapidly within the home, nursing homes will have to modify how they comply with this rule. Now, nursing homes would be expected to take steps to restrict who is able to access the facility to visit their loved ones. In fact, now nursing homes are expected to keep non-essential visitors out of the facility, allowing people in only in compassionate situations and for end of life visits.
Facilities are expected to carefully screen those who are trying to visit and err on the side of turning away potential visitors if they appear to be exhibiting symptoms of illness. This conflicts in some way with the resident’s right to receive visitors, but there is interim guidance from both the CDC and CMS which requires the nursing home to establish procedures for controlling access to the facility.
In addition, the CMS has urged nursing homes to consider alternatives to visits. Some states are even going beyond this guidance and imposing blanket bans on nursing home visits. The current CMS guidance issued on March 13 is that nursing homes can only allow visits in compassionate situations and must establish strict controls for those who are allowed into the nursing home
The general rule is that a nursing home must have an activity program that is “designed to meet the interests, physical, and psychosocial well-being of each resident.” In the federal rules regarding quality of life, the resident is given the right to interact with other residents in the facility and also to have the right to make choices about aspects of their life at the facility that affect them.
The CDC’s interim guidance restricts some of the activities available to the residents and their rights to interact with other residents under many circumstances. For example, the CDC’s guidance urges nursing homes to reconsider group activities. While group activities would ordinarily foster communal involvement and engagement, they can now be considered dangerous.
In addition, nursing homes now must consider keeping residents away from one another as the prospect of a coronavirus outbreak in the facility is a serious threat. While they would have run afoul of inspectors by keeping residents more isolated, now they should consider ways to keep residents apart when communal spread is a threat. The concept of social distancing is a departure from the usual nursing home regulations.
Nursing Home Inspections
The restrictions on nursing home access will even impact how the states and the federal government can enforce their rules. Nursing homes are subject to annual inspections and government regulators will also visit the nursing home to investigate complaints or suspected rule violations.
The government can still enforce the rules, but now must be more careful about sending inspectors into the facilities. One of the challenges that the states now face (state inspectors go into the nursing home for federal inspections too) is to get inspectors into nursing homes because they may have been in other facilities where they were exposed to Covid-19.
Nonetheless, this is not presently viewed as a problem if they properly protected themselves at other facilities. However, this is an area that could change if the pandemic continues to worsen.
These are four areas where the CMS’ and CDC’s interim guidance will impact nursing home rules and regulations. As more becomes known about coronavirus and the impacts become clearer, there may be more changes in store for nursing homes. Moreover, it is unclear at this point whether failure to follow this interim guidance would lead to penalties for nursing homes or legal liability if a resident becomes sick.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Jonathan Rosenfeld is a trial attorney in Chicago at Rosenfeld Injury Lawyers LLC. A substantial portion of his cases are related to negligence in nursing homes and other long-term care facilities.