Health Care Law Blog

New Requirements for Hospital Discharge and Long-Term Care Facility Residents

On May 20, 2020, Governor Gretchen Whitmer issued Executive Order 2020-95, which updates precautionary and notification requirements for long-term care facilities to protect residents and employees from the spread of COVID-19. Executive Order 2020-95 rescinds Executive Order 2020-84, which provided initial protections for long-term care residents. “Long-term care facility” includes a nursing home, home for the aged, adult foster care facility, or assisted living facility.

At times throughout the order, nursing homes are specifically identified and have additional requirements. Executive Order 2020-95 currently lasts through June 17, 2020. The Department of Health and Human Services (DHHS) in Michigan is authorized to issue orders or directives to implement these requirements.

I. Protections Specific to Residents

During the length of Executive Order 2020-95, long-term care facilities may not evict or involuntarily discharge a resident due to nonpayment or otherwise deny them access to the facility. The facility is not allowed to prohibit admission or readmission of a resident based on COVID-19 testing requirements or results in a manner inconsistent with this Executive Order.

Executive Order 2020-95 recognizes that many residents have voluntarily obtained housing outside the facility due to the risk of COVID-19 spreading rapidly through the facility. If a resident moved in with a family member during the COVID-19 pandemic, they do not forfeit their right to return to the facility. The long-term care facility is required to accept return of the resident, as long as it can meet the medical needs of the resident and there are no statutory grounds for refusal. One possible reason that a resident may be refused readmission is if the facility no longer has capacity for them to return.  When a resident is accepted back into the facility, the facility must screen them for COVID-19. If the individual tests positive, the facility must not accept them unless it has a dedicated unit or regional hub solely for COVID-19 positive residents.

Executive Order 2020-95 urges long-term care facilities to use telemedicine to the maximum extent possible. Long-term care facilities are encouraged to use telemedicine for regular doctors’ visits, telepsychology, counseling, social work, and physical and occupational therapy.

II. Protections for Both Residents and Employees

The following requirements involve the facility as a whole, to ensure safety for both employees and residents. Employees who test positive or display any of the principal symptoms of COVID-19 must stay home and the facility may not discipline or retaliate against them for doing so. The facility must take necessary precautions to ensure adequate disinfecting and cleaning, and provide employees with personal protective equipment (PPE) and hand sanitizer.

If the presence of a COVID-19 affected resident is identified, the facility must inform employees as soon as reasonably possible, and no later than 12 hours after identification. The facility is required to report all presumed positive COVID-19 cases to DHHS. The facility must also report the presence of a COVID-19 affected resident to their local health department within 24 hours.

III. Transfer and Discharge Procedures for COVID-19 Affected Residents

If a COVID-19 affected resident is not medically stable, a long-term care facility is required to transfer them to a hospital. If the long-term care facility has a unit dedicated to the care and isolation of COVID-19 affected residents (a “dedicated unit”), then the resident must be transferred to the dedicated unit. Nursing homes are required to make all reasonable efforts to create a designated unit within the nursing home. Within a dedicated unit, all employees providing direct care must be provided appropriate PPE. The Executive Order clarifies that if a nursing home cannot implement effective and reliable infection control procedures, it must not create or maintain a dedicated unit. If a nursing home owner operates multiple facilities, it may choose to designate a whole facility as a dedicated unit.

If the COVID-19 affected resident is stable and the facility has a dedicated unit, the resident must be transferred there. If the facility does not have a dedicated unit, the resident should be transferred to a regional hub, an alternate care facility, or an available swing bed at a hospital. If none of those options are available, the long-term care facility must attempt to send the resident to a hospital with available bed capacity.

If a resident is hospitalized due to COVID-19 and becomes stable, the hospital must conduct testing prior to discharge back to the facility. Under Executive Order 2020-95, a hospital is only permitted to discharge the resident to: a regional hub, the resident’s prior facility, an alternate care facility, or an available swing bed. An alternate care facility is defined as a facility activated by the state to provide relief for hospitals that surge past capacity. In the discharge process, the hospital should consider patient safety, safety of other residents, the resident’s wishes, and any guidance from the local health department. The resident may only be discharged to a facility where they can be safely isolated under the Centers for Disease Control (CDC) and DHHS guidelines. Until a safe location is determined, the individual must remain in the care of the hospital.

Contact a member of Foster Swift’s Health Care Group with any questions on the hospital discharge procedures or requirements for long-term care facilities under Executive Order 2020-95. For further questions concerning this article, contact one of the authors below.

• Jennifer Van Regenmorter; jvanregenmorter@fosterswift.com

While the information in this article is accurate at time of publication, the laws and regulations surrounding COVID-19 are constantly evolving. Please consult your attorney or advisor to make sure you have the most up to date information before taking any action.

Categories: Hospice, Hospitals, Long-Term Care