Lester Perling (lester.perling@nelsonmullins.com) is a Partner and Jamie Gelfman (jamie.gelfman@nelsonmullins.com) is Of Counsel in the Fort Lauderdale office of Nelson Mullins Riley & Scarborough.
In mid-February 2020, Life Care Center of Kirkland—a Life Care Centers of America skilled nursing facility located in Kirkland, Washington—experienced an increase in residents and staff members demonstrating symptoms of febrile respiratory illnesses.[1] After several of the residents were initially tested for influenza, one of the residents, a 73-year-old female resident with a history of coronary artery disease and other underlying conditions, was transported to the hospital as her respiratory symptoms deteriorated. Although the resident reported that she had not recently traveled nor been in any known contact with anyone with COVID-19, she ultimately tested positive and passed away on March 2, 2020.
An epidemiologic investigation of the facility reported 129 cases of COVID-19, which included 81 residents, 34 staff members, and 14 visitors and resulted in 23 deaths (although that number rose to 37 deaths linked to the facility by April 2).[2] Such staggering numbers—and the swiftness with which the virus spread among the facility’s residents and staff—were also reported by other long-term care facilities (LTCFs) across the nation. As of the writing of this article, the number of reported COVID-19 cases at nursing homes, assisted living facilities, and other elder care centers spanned 73 facilities across 22 states, and a quarter of the total amount of COVID-19–related deaths in the US have occurred in such facilities.[3]
Seattle & King County Public Health, in conjunction with the Centers for Disease Control and Prevention (CDC), began investigating LTCFs to evaluate their infection control strategies and availability of personal protective equipment (PPE) through surveys, on-site visits, and reviews of countrywide databases of emergency medical service transfers from LTCFs to acute care facilities.[4] The investigation revealed certain factors that attributed to LTCFs’ increased vulnerability to the spread of COVID-19, including: “1) staff members who worked while symptomatic; 2) staff members who worked in more than one facility; 3) inadequate familiarity and adherence to standard, droplet, and contact precautions and eye protection recommendations; 4) challenges to implementing infection control practices including inadequate supplies of PPE and other items (e.g., alcohol-based hand sanitizer); 5) delayed recognition of cases because of low index of suspicion, limited testing availability, and difficulty identifying persons with COVID-19 based on signs and symptoms alone.”
In addition, CDC noted that the “underlying health conditions and advanced age of many long-term care facility residents and the shared location of patients in one facility places these persons at risk for severe morbidity and death.” In fact, a study conducted by the Keiser Family Foundation in 2017 found that four of every five nursing facility beds in the nation were filled, with some states reporting even higher occupation density.[5] The study also reported infection control as the most common deficiency among nursing facilities. Infection control deficiencies, combined with high occupant density, places LTCF residents and staff at an even greater risk of the swift spread of diseases like COVID-19.
Due to these factors, CDC cautioned that “once COVID-19 has been introduced into a long-term care facility, it has the potential to result in high attack rates among residents, staff members, and visitors,” and therefore, “it is critical that long-term care facilities implement active measures to prevent introduction of COVID-19.”[6]
As a result of the unprecedented outbreak of COVID-19 in LTCFs, CDC and other federal and state agencies have issued guidance for LTCFs and other providers of vulnerable populations, such as hospice providers and home health agencies, to mitigate the spread of COVID-19 and to prevent and mitigate exposure to similar viruses in the future, as further explained below.
Guidance for LTCFs
In response to what occurred at Life Care Center of Kirkland, the Centers for Medicare & Medicaid Services (CMS) conducted an inspection of the facility in collaboration with the Washington Department of Social and Health Services (Washington Department), which revealed three “immediate jeopardy” situations, defined as situations in which the health and safety of patients and residents are in imminent danger.[7] Specifically, the facility failed to rapidly identify and manage ill residents, failed to notify the Washington Department about the increasing rate of respiratory infection among residents, and failed to possess a sufficient backup plan when the facility’s primary clinician became ill.
All Medicare- and Medicaid-participating nursing facilities must comply with certain health and safety requirements, including the establishment of an infection prevention and control program “to help prevent the development and transmission of communicable diseases and infections.”[8] Compliance with these requirements is evaluated through annual on-site surveys conducted by state survey agencies.[9] On April 1, CMS issued Life Care Center of Kirkland a notice to involuntary terminate Medicare provider agreement as the facility “no longer met the requirements for participation as a provider of services in the Medicare program.”[10] Also, as a result of its inspection of Life Care Center of Kirkland, CMS developed and implemented a targeted three-pronged survey process to temporarily replace the annual survey of nursing facilities, with the purpose of focusing solely on infection control and immediate jeopardy situations in order to identify gaps in nursing facilities and require such facilities to take immediate corrective action.[11]
Through this process, inspectors were to immediately begin conducting surveys related to specific complaints and facility-reported incidents that involved immediate jeopardy allegations, which requires the use of a “streamlined Infection Control review tool,” regardless of the allegation. Inspectors were to also conduct targeted infection control inspections of other providers identified by CMS and CDC, in order to provide a “quick, focused assessment of a provider’s infection control practices in those areas where such increased oversight will be most effective.” Finally, CMS was to provide an infection control checklist to providers and suppliers to allow for self-assessment of their current infection control plans and to enable them to identify and correct any deficiencies with respect to federal infection control requirements. Although these CMS survey requirements and directives apply to nursing facilities, the National Association for Home Care & Hospice recommends that assisted living facilities consider and implement these guidelines.[12]
Additionally, shortly after COVID-19 was reported in the US, CDC issued prevention and control recommendations for patients with suspected or confirmed cases of COVID-19 in healthcare settings (CDC guidance).[13] The CDC guidance provides recommendations for minimizing the chance for exposures; adherence to standard and transmission-based precautions, including the use of hand hygiene and PPE; patient placement; precautions to take when performing aerosol-generating procedures; collection of diagnostic respiratory specimens; managing visitor access and movement within facilities; implementing engineering controls to reduce or eliminate exposures; monitoring and managing exposed and ill healthcare personnel (HCP); training and educating HCP; implementing environmental infection control; establishing reporting within and between healthcare facilities and to public health authorities; and the use of Airborne Infection Isolation Rooms, respirators, and facemasks.
As a result of its investigation into the spread of COVID-19 in LTCFs, CDC issued supplemental guidance specifically targeted to LTCFs to enable such facilities to “assess and improve their preparedness” and develop a comprehensive response plan with respect to COVID-19 (the LTCF guidance).[14] The LTCF guidance includes additional recommendations for education and training; supplies and resources; rapid identification and management of ill residents; considerations for visitors and consultant staff; sick leave policies and other occupational health considerations; surge capacity for staffing, equipment and supplies, and postmortem care.
The LTCF guidance recommends that LTCFs educate residents, HCP, and visitors about infection prevention and control measures, including hand hygiene and selection and use of PPE. Specifically, CDC recommends that alcohol-based hand sanitizer be placed in every resident’s room and in other resident care and common areas. Tissues and facemasks should be readily available for individuals exhibiting coughing symptoms. LTCFs should have facemasks, gowns, gloves, eye protection (i.e., face shield or goggles), and respirators (if available and the facility has a respiratory protection program with trained, medically cleared HCP and respirators that are fit-tested to each individual HCP), and necessary PPE should be readily available in areas where resident care is provided. CDC also recommends that trash bins be placed near the exit in residents’ rooms so staff may discard PPE prior to exiting the room or providing care to another resident in the same room. LTCFs should also ensure that Environmental Protection Agency-registered, hospital-grade disinfectants are available to allow for frequent cleaning of high-touch surfaces and shared resident care equipment.
CDC also recommends LTCFs to screen all HCP prior to beginning their shift for fever or respiratory symptoms and to require HCP to immediately use a facemask and leave the workplace should they develop a fever or respiratory symptoms while at work. Additionally, LTCFs should develop or review existing plans to mitigate any staffing shortages should HCP fall ill, a direct response to one of the deficiencies identified by the CMS inspectors at Life Care Center of Kirkland.
Residents should also be actively monitored for symptoms upon admission and at least daily. If any resident—or a cluster of residents—is suspected or known to have COVID-19, CDC recommends that LTCFs immediately notify the local health department, follow CDC’s infection prevention and control recommendations, and, to the extent feasible, place the resident(s) in a private room with their own bathroom unless they require a higher level of care. PPE, including eye protection, should be used by any HCP who come in contact with the resident. Additionally, CDC recommends that visitation to LTCFs be restricted except under certain compassionate care situations, such as end-of-life situations. Visitors permitted entry must wear a facemask, and visitation should be limited to the resident’s room or other location designated by the facility.
Some local governments also responded by issuing executive orders prohibiting visitation in LTCFs. For instance, in Florida, the governor issued an emergency order prohibiting visitors from entering such facilities with the exception of family members, friends, and visiting residents during end-of-life situations; hospice workers; attorneys of record for residents in adult mental health and treatment facilities if virtual or telephonic means are unavailable; facility staff and residents; individuals providing necessary healthcare to a resident; and state and federal government representatives seeking entry in their official capacities.[15] Unfortunately, nursing homes already report nearly 40% of its residents experiencing symptoms of depression, and research on family involvement in LTCFs show “positive effects on cognitive and behavioral health diagnoses.”[16] As such, CDC recommends that LTCFs implement alternative communication methods for residents, such as video conferencing.[17]
Although the LTCF guidance was developed in reaction to COVID-19, these recommendations should form the basis of a LTCF’s general infection control and disease management program going forward, particularly to ensure that the facility is properly equipped with PPE, that staff is trained regarding the use of PPE and sanitation mechanisms, and that residents are properly monitored by staff to mitigate and prevent a swift and widespread outbreak similar to what occurred at Life Care Center of Kirkland and other similar facilities in the future.
