As COVID-19 continues to spread, it is our skilled nursing (SNF) and long-term care (LTC) facilities caring for the population most vulnerable to the virus- older adults and people with high-risk chronic medical conditions. This leads to a variety of changes and considerations facilities must keep in mind when treating patients, both in the context of operations and patients.
Operations and Employment
Civil Liability
Most recently, on April 5, 2020, Governor Lamont issued Executive Order 7U. As it applies to SNFs and LTCs, the Order provides immunity from suit for civil liability for any injury or death alleged to have been sustained because of the healthcare provider or healthcare facility’s acts or omissions taken in good faith while providing healthcare services in support of the State’s COVID-19 response. The order expressly includes immunity from damages for acts or omissions undertaken because of a lack of resources attributable to the COVID-19 pandemic. The immunity afforded by the Order does not extend to conduct that constitutes a crime, fraud, malice, gross negligence, or willful misconduct. The Order applies retroactively to the date of Governor’s Lamont’s declaration of a public health emergency on March 10, 2020.
For the purposes of this Order, the term “health care professional” is defined broadly to include the following individuals:
- Healthcare professionals licensed, registered, permitted or certified in any state of the United States;
- Retired healthcare professionals;
- Healthcare professionals with an inactive license; and
- Volunteers approved by the Department of Public Health.
“Health care facility” is defined to include all State-licensed or approved nursing homes.
Waiver of Licensing, Renewal, and Inspection Requirements- State and Federal
On March 27, 2020, Governor Lamont signed Executive Order 7O, which allows the Commissioner of the Department of Public Health to waive licensing, renewal, and inspection requirements. This order is retroactive to March 10, 2020, the date of the Governor’s declaration of a public emergency. This order applies to SNFs, LTCs, and their staff.
Under Executive Order 7O, the Commissioner of Public Health may suspend any of the requirements for renewal of any license that would otherwise have been due for renewal between March 10, 2020, and six months after the emergency is declared to be over. Any license that was due for renewal during that time frame will need to be renewed within six months after license renewal requirements are reinstated (i.e., one year after the emergency is declared to be over).
In addition to suspending licensing renewal requirements, Executive Order 7O allows the Commissioner of Public Health to suspend the requirements for DPH inspections from March 10, 2020 until six months after the emergency is declared to be over. The inspections missed during that time will take place within six months after the date inspections resume (i.e., one year after the emergency is declared to be over).
Please note that these waivers are permissive and not mandatory. On March 4, 2020, CMS suspended non-emergency survey inspections nationwide, but still intends to perform inspections related to health and safety threats like infectious diseases and abuse. CMS is also continuing with surveys for existing in-process enforcement actions. On April 1, 2020, CMS issued a termination letter to a SNF in Washington State after an Immediate Jeopardy Disposition was made following an unannounced complaint investigation related to COVID-19.
CMS Guidance for Infection Control and Prevention of COVID-19 in Nursing Homes
On March 13, 2020, CMS issued a revised memo providing guidance to nursing homes related to COVID-19. This memo can be found here.
The guidance includes restrictions of visitors except for compassionate care situations, the cancellation of communal dining and group activities, and information about transferring and accepting patients. In light of the shortage of PPE supplies, it is also important to note that CMS will not cite facilities for not having certain supplies if they are having difficulty obtaining them for reasons outside of their control, as long as they can show they are taking appropriate steps to obtain supplies as soon as possible and mitigating those shortages by, for example, increasing hand washing.
Health Care Provider Identification Badges
Executive Order 7O includes a modification to the ID badge requirements. Conn. Gen. Stat. 19a-905 requires that healthcare providers wear a photo ID badge issued by the facility that includes the name of the facility, healthcare provider, and type of license, certificate, or employment title the provider holds at the facility. Under Executive Order 7O, providers may wear badges displaying the name of a different healthcare facility provided it still includes the provider’s name and type of license, certificate, or employment title they hold. This allows staff to work at multiple facilities without having to obtain or change badges.
Nursing Home Transfers
On March 24, 2020, Governor Lamont issued Executive Order 7L, which included a provision applicable to nursing homes. This Order modifies Conn. Gen. Stat. 19a-533(h), dealing with the timeline for nursing home admissions. Now, when an applicant seeking transfer from a nursing home where they were placed after the closure of the nursing home where they previously resided, the deadline for transfer is “not later than one year following the date that such applicant was transferred from the nursing home where he or she previously resided.” This is an increase from the previous 60-day deadline.
Suspension of National Criminal History Records Checks for Long Term Care Providers
On March 23, 2020, Governor Lamont signed Executive Order 7K, which suspended the requirement that prospective employees or volunteers submit to a background search prior to a LTC extending an offer of employment to an individual or allowing an individual to begin volunteering. Instead, the facility may employ, enter into a contract with or allow to volunteer an individual on a conditional basis for a period not longer than 60 days so long as the background check has been submitted, the individual is subject to direct on-site supervision, and they have signed a statement affirming that they have not committed a disqualifying offense and acknowledging that if a disqualifying event is on the background check when results are received, it will constitute good cause for termination.
General Employment Matters
For general employment resources related to COVID-19, please refer to the Carmody COVID-19 (Coronavirus) Resource Center found here.
Other Patient-Specific Changes
Restriction of Visitors
Executive Order 7A, signed on March 13, 2020, allowed orders restricting entrance into nursing home facilities as necessary to protect the health and welfare of patients, residents and staff. This replaced the less restrictive visitation order put in place through Executive Order 7, signed March 12, 2020.
Suspension of In-Person Investigations Regarding Reports of Elder Abuse
Executive Order 7G, signed on March 19, 2020, allows the Commissioner of Social Services to waive the required in-person visit to an elderly person when there is a report of suspected abuse, neglect, exploitation or abandonment, or a need for protective services. Instead, alternative means will be used to conduct the visit.
Additionally, Executive Order 7G extends the time within which the Department of Social Services has to disclose, in general terms, the results of an elder abuse investigation to the person or persons who reported the suspected abuse from 45 days to 90 days after completing the investigation.
Waiver of In-Person Service and Other Probate Limits
Should any of your residents need to be served with legal papers for a civil or probate matter by a marshal or other indifferent person, the in-person service requirement was waived by Executive Order 7F, signed on March 18, 2020. Instead, service can be made on the administrator or administrator’s designee provided they sign a certification for the process server stating that the named party is currently located in the facility and that the administrator or administrator’s designee will personally serve the resident.
Additionally, Executive Order 7F suspended time requirements, statutes or limitation or other limitations or deadlines relating to service of process, along with time requirements and deadlines for Probate Courts to issue notices, hear matters, and render decisions. The Probate Court does have discretion to hold hearings and render decisions if a particular matter warrants and the interest of the parties requires.
That being said, any requirements for an in-person meeting, hearing, or screening in a probate matter is waived. Instead, the hearing, meeting, or screening may take place by another method that allows for the participation of the interested parties.
Suspension of In-Person Hearing Attendance at DSS Fair Hearings
Executive Order 7E, signed on March 17, 2020, suspended the requirement that an aggrieved person who requested a fair hearing on a decision of the Commissioner of Social Services appear in person.
Tamara M. Nyce
(203) 578-4275; tnyce@carmodylaw.approvalserver.com
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