By: Tom Walton, Associate Attorney, Sutton | Booker | P.C.

The current COVID-19 crisis has spread fear, confusion, and litigation across all facets of American life, but nursing homes and long-term care facilities (LTCFs) are uniquely vulnerable both to the direct impacts of COVID-19 and the inevitable lawsuits that will follow. Nationwide, dozens of COVID-19 related lawsuits have already been filed on a variety of issues[1], including the first wrongful death suit against Life Care Center in Washington, a LTCF which now has 129 COVID-19 cases and 37 deaths tied to it.[2]

The Centers for Disease Control and Prevention (CDC) has issued extensive guidance to help LTCFs to prepare for COVID-19. The CDC’s COVID-19 guidance is important not only as a wealth of practical advice for keeping LTCF residents and staff safe during these trying times, but also as potential evidence of a standard of care which LTCFs should hold themselves to. The entirety of the CDC’s COVID-19 guidance can be found here, but the major points are set forth below:

  • Education. It is vitally important to educate staff, residents, and residents’ loved ones about how to prevent the spread of COVID-19 and the risks it poses to LTCF communities. Education about the possibility of asymptomatic spread is particularly important as states begin to consider steps to re-open their economies and social distancing restrictions are relaxed.
  • Monitor staff and plan ahead. LTCF staff should wear facemasks at all times while at the facility and take their temperature at the beginning of each shift and actively through the duration of each shift. Employees who show any sign of fever or other COVID-19 system should be sent home immediately. If they have not already, LTCFs should implement non-punitive sick leave policies that do not disincentivize employees to report symptoms. Have a plan in place to prepare for staffing shortfalls.
  • Implement and enforce strict visitor policies. LTCFs should implement strict visitation restrictions limiting who, when, and how visitors are allowed. Get in front of the issue by preemptively notifying families of the new restrictions and any subsequent changes. To the extent possible, determine if visitors show any COVID-19 symptoms, and prevent symptomatic visitors from entering the facility. Require visitors to wear a mask or cloth face covering at all times while at the facility. This will become even more important as “shelter-in-place” and “stay-at-home” orders are lifted.
  • Maintain sufficient supplies of PPE and sanitation products. Keep alcohol-based hand sanitizer in every room, ensure sinks are will stocked with soap and paper towels, make tissues and trashcans widely available. Assess your PPE supply and plan to assess shortages before they happen.
  • Dedicate separate space for residents with COVID-19 symptoms. Take proactive steps to monitor residents for signs of COVID-19 symptoms and remember, “older adults with COVID-19 may not show typical symptoms such as fever or respiratory symptoms. Atypical symptoms may include new or worsening malaise, new dizziness, or diarrhea.” Residents with COVID-19 do not need to be placed in an airborne infection isolation room, but they should be separate from uninfected residents in a dedicated floor, unit, or wing. Take special care in monitoring and caring for residents with COVID-19 symptoms and prior to transporting residents to a facility with a higher level of care ensure that the transport personnel and receiving facility are notified of the suspected diagnosis prior to transfer.

The CDC and best practice suggest LTCFs create a written plan to address the COVID-19 crisis. A convenient checklist for COVID-19 preparedness can be found here. Best practice would also suggest that, in addition to the written plan, LTCF should carefully document everything done in response to COVID-19 to be ready just in case the worst happens.