Indiana State Department of Health Continues to Issue Guidance Related to the Effects of COVID-19 on Long-Term Care Facilities

Regulators continue to issue guidance impacting long-term care providers. The Indiana State Department of Health (ISDH) has circulated several distinct long-term care newsletters, with updates in the last two weeks that are applicable to comprehensive care facilities (nursing homes) and residential care facilities (assisted living facilities). As noted below, some of these updates waive certain regulatory requirements for facilities.

• Issue 2020-04, issued on March 15, 2020, states that all facilities should restrict visitation of all visitors and non-essential health care personnel. This is consistent with guidance issued by the Centers for Medicare and Medicaid Services (CMS), and is further addressed in our Long-Term Care Practice Group’s prior discussion, available here.
• Issue 2020-05, issued on March 18, 2020, focuses on ways to decrease the spread of COVID-19 in nursing homes and assisted living facilities when a resident is known or suspected as positive with COVID-19. The newsletter refers to Centers for Disease Control and Prevention (CDC) guidelines for donning personal protective equipment (PPE) and infection control measures. In its guidance, ISDH makes a distinction between “essential” and “non-essential” staff to minimize the contacts with a resident who has COVID-19. ISDH advises that only those individuals who provide medical care are considered essential staff. These are the only individuals who should enter the room of a confirmed or presumed COVID-19 patient. ISDH also recommends creating a designated unit for caring for COVID-19 patients, which is consistent with guidance received from both CMS and the Indiana Family and Social Services Administration (FSSA). Finally, with CMS prioritizing immediate jeopardy surveys, ISDH indicates it has moved its workforce to create “LTC strike teams” to conduct PPE training and communicate risk mitigation strategies to facilities’ essential staff. ISDH clarifies that these are not regulatory visits, so no survey report will be generated./li>
• Issue 2020-06, issued on March 20, 2020, highlights the first temporary blanket waiver and requests that all facilities have health care workers wear a face mask during their shifts. According to ISDH, the mask does not need to be a N95 mask. The first waiver modifies the time period for new employees and new admissions to receive their required tuberculosis (TB) tests to ninety (90) days, and suspends the diagnostic chest X-ray requirement for residents. ISDH also creates a new personal care attendant to allow nursing homes to employ temporary PCAs to provide resident care procedures that do not require the skill or training required for a certified nurse aide.
• Issue 2020-07, issued on March 21, 2020, informs facilities of temporary blanket waivers for nursing homes and assisted living facilities. The nursing home waiver makes changes to the notice requirement for transfer and discharge, which typically is a thirty (30) day notice requirement. Under the waiver, a facility must provide notice “as soon as practicable” before the resident is transferred or discharged. The waiver also waives the requirement as to living arrangements to allow for rapid resident moves, relaxes the rules on nurse aide training requirements and dining assistant qualifications, permits telemedicine by physicians, and waives some of the required activities for facilities such as group and indoor/outdoor activities for residents. Assisted living facilities have an identical waiver on the thirty (30) day notice requirement for transfers and discharges and also permits the preparation of medication on a weekly basis for residents.
• Issue 2020-08, issued on March 22, 2020, recommends that facilities adopt the CDC Preparedness Checklist for Nursing Homes and other Long-Term Care Settings as a tool to assist in preparing a COVID-19 response plan. The newsletter also addresses voluntary leaves of absences from facilities. Under the guidance, ISDH states that: (1) voluntary leaves of absence are strongly discouraged due to increased risks to residents of COVID-19 exposure; (2) if a resident insists on taking the voluntary leave, and the facility has reasonable basis that the resident will pose a risk to others if allowed back in the facility after the leave, then the facility may discharge with fewer than thirty (30) day notice; (3) if a facility permits a leave, then it must permit the resident’s return and follow proper isolation procedures; (4) a nursing home medical director may issue a facility-wide standing order prohibiting voluntary leaves of absences due to public safety concerns; and (5) hospital stays and therapeutic leaves are not considered voluntary leaves of absence from nursing homes.
• Issue 2020-09, issued on March 23, 2020, informs facilities of another temporary blanket waiver extending similar waivers as to temporary PCAs and dining assistant qualifications to assisted living facilities. This waiver further eliminates the requirement for assisted living facilities to coordinate transportation for residents. The newsletter also links to a letter from ISDH State Health Commissioner providing the following guidelines:
  • Only essential providers should come in direct contact with patients and should wear a surgical mask for their entire shift. One mask per person per shift.
  • Facilities should keep known or suspected COVID-19 positive residents in the same area of the facility.
  • Facilities should also try to keep those direct care providers to these residents in the same area of the building.
• Issue 2020-10, issued on March 24, 2020, references guidance the FSSA Chief Medical Officer, which is consistent with the guidance provided by ISDH to date. Additional recommendations include the following:
  • All facilities should use the Long Term Care (LTC) Respiratory Surveillance Line List to track infection control procedures and to track individuals with respiratory illness.
  • Facilities need to have updated lists of all residents’ code status. In addition, plans should be in place for how to provide hospice and comfort care to those patients with do-not-resuscitate (DNR) orders who develop COVID-19.
  • Facilities should prioritize mask usage depending on the national and local supply, as follows:
    • If supplies are at a conventional capacity at the national and local level, then all staff should wear a facemask.
    • If supplies are at contingency levels, only direct care staff should wear a mask, one per shift.
    • If there is less than a one-week supply, then only direct care staff should wear a mask, and they must use the same mask for multiple days.
    • If national and local supplies are at “crisis capacity” then direct care staff should wear a mask if one is available. Otherwise, they should use alternative methods to cover their mouths and noses and decrease respiratory droplet spread.
  • All facilities should update their status on a daily basis with EMResource to track PPE needs.
• Issue 2020-11, issued on March 25, 2020, provides a "COVID-19 Toolkit" which includes much of what is discussed in this update, along with other relevant documents, such as a March 23, 2020 memorandum with the most recent CMS survey guidance, and a sample visitor restriction sign.

Find Answers to COVID-19 Issues, Impacts and Recommendations from Quarles & Brady.

Quarles and Brady’s Health Law Team is continuously monitoring the ever-changing landscape of the COVID-19 pandemic, including as it relates to long-term care providers. We will continue to track any updates and waivers from ISDH and other regulatory bodies. For more information, please contact your Quarles & Brady attorney or:

• Randall R. Fearnow: (312) 715-5194 / randall.fearnow@quarles.com
• Jaya F. White: (312) 715-5242 / jaya.white@quarles.com
• Shamika L. Mazyck: (317) 399-2835 / shamika.mazyck@quarles.com