State Agency Guidance Evolves on Nursing and Assisted Living Facility Re-Opening

State Agency Guidance Evolves on Nursing and Assisted Living Facility Re-Opening

As Virginia continues to progress through phased re-opening, Virginia long-term care facilities are balancing and considering the mental and physical health dangers posed to residents by COVID-19. The Virginia Department of Health (“VDH”) has published guidance and frequently asked questions (“FAQs”) for nursing homes addressing how they should approach phased re-opening. Additionally, the Virginia Department of Social Services (“DSS”) has published similar guidance for assisted living facilities. CMS recently published FAQs to provide further context to the guidance CMS published on visitation in nursing facilities during phased re-opening. This Client Advisory will address these recently published materials and will provide some suggestions to both nursing and assisted living facilities as they continue to tackle the difficult task of phased re-opening. Expect additional evolution and iterations of this guidance as the phases unfold.

VDH Guidance to Nursing Facilities

VDH’s guidance to nursing facilities follows the memo CMS released on May 18 providing guidelines for the general re-opening of nursing facilities nationwide.[1] Virginia facilities should consult both documents as they navigate the process of phased re-opening. VDH provides a checklist to facilities to steer them through the phases of re-opening. To move into a phase, a facility will have to meet every criterion for entrance to that phase on the checklist and provide the local health department with an attestation.

A facility moving through the phases needs to monitor and evaluate its available staff[2] and personal protective equipment and disinfectant[3] inventory. VDH clarifies that a new nursing home onset[4] case of COVID-19 in a resident, triggers a return to Phase 1, while a staff case of COVID-19 does not itself trigger phase regression. Additionally, the facility cannot be in a more advanced phase than the surrounding community. Therefore, if the surrounding community regresses to an earlier phase, the nursing facility will also regress to that phase. The community must be in a phase for at least 14 days before a nursing facility can progress into the same phase.

The facility must have a plan to offer all facility residents a baseline test plus at least one additional test for COVID-19 before the facility can progress to Phase 1. However, the local health department may recommend specific facilities conduct complete baseline testing before they enter Phase 1 based on facility-specific factors. Further, VDH – through an on-site survey or a voluntary local health department assessment – must evaluate and approve a facility’s infection prevention control practices before any facility can move into Phase 2.

In its guidance, VDH re-emphasizes that facilities should screen all residents and staff for COVID-19 symptoms at the beginning of each shift. Facilities should test any symptomatic resident or staff person immediately. Facilities should isolate symptomatic residents from other residents as much as possible and facilities should send symptomatic staff home and not allow them to return to work until they meet the CDC’s return to work criteria. All residents that will tolerate cloth face coverings or masks should wear one any time they are out of their room unless the resident has difficulty breathing or is unable to remove the mask without assistance. While in the facility, all staff and essential health care personnel have to wear a cloth face covering or face mask at all times.

Some residents and staff may refuse to be tested. The facility needs to have a policy and procedure in place for addressing residents and staff who refuse to be tested. If a resident or staff refuses to be tested, the facility should:

  • Educate the refusing resident or staff person on the importance of testing to protect other residents and staff,
  • Answer any questions posed by the refusing resident or staff person,
  • Address any testing concerns raised by the resident or staff person, and
  • Have a plan in place for how to handle residents or staff who refuse to be tested.

If a resident refuses to be tested, the facility should ask the resident to remain in the resident’s room for personal safety, and the safety of other residents, as much as possible. The resident should be asked to wear a mask any time the resident leaves their room. If a staff member refuses to be tested, employment law experts, such as attorneys and/or Human Resources personnel should advise on the specifics, including any accommodations.

Administration should designate a portion of the facility to care for, and cohort, residents with COVID-19. This area should be physically and clearly separated from the rest of the facility. In addition, if it is physically feasible, the facility should cohort new facility admissions whose COVID-19 status has yet to be confirmed and other residents that have been exposed to COVID-19. If the facility is capable of doing so, best practice would require the creation of three separate cohorts or units of residents:

  • Healthy and asymptomatic residents.
  • A “warm” cohort of unknown COVID-19 status residents, symptomatic residents who tested negative for COVID-19, and residents who have been exposed to COVID-19. All rooms in the “warm” cohort should be singles.
  • A “hot” cohort of COVID-19 positive residents.[5]

The facility should restrict common areas and equipment to use and access by a single cohort of residents to prevent further COVID-19 spread and contamination. The facility should also schedule staff to care for a single cohort of residents. If physical plant or other challenges prevent a facility from cohorting residents, the facility should consider installing temporary barriers that separate residents by at least six feet and/or transport COVID-19 positive residents to a dedicated care facility. If the facility decides to relocate any resident, whether that resident be positive or negative for COVID-19, the facility should quarantine any relocated resident in a private room for 14 days on transmission-based precautions and closely monitor the resident for symptoms of COVID-19.

Prior to entering Phase 3, facilities should continue to restrict visitation to only compassionate care situations. As the CMS FAQs describe, compassionate care situations are not restricted to end-of-life situations but can extend to other exceptional circumstances to prevent serious psychosocial harm to a resident. Facilities should consult with state and local health departments and officials and families to determine if a compassionate care visit is appropriate. The guidance also allows for some outside and creative visitation prior to the facility entering Phase 3. During any and all visits, the facility should ensure that all transmission-based precautions and social distancing measures are properly employed to prevent the spread of COVID-19. Facilities should consult with their local health department and consider the unique circumstances the facility is facing to determine if, and what type, of visitation is appropriate at a given time.

Any decision to close or allow admissions or readmissions should be made based on an assessment of the unique situation the facility is in and in consultation with the facility’s local health department. The following criteria should be met when a facility elects to accept admissions and readmissions:

  • The number of COVID-19 cases in the facility is decreasing,
  • No evidence of widespread COVID-19 transmission in the facility,
  • Facility is compliant with infection prevention and control best practices,
  • Enough space in the facility for cohorting positive and negative residents and an observational unit for new admissions,
  • Adequate staffing, personal protective equipment, and other supplies, and
  • The facility has a plan in place to manage new admissions and readmissions.

On May 8, 2020 CMS published a new interim final rule that required nursing facilities to report COVID-19 data to the Secretary through the National Healthcare Safety Network (“NHSN”) module at least weekly.[6] VDH is requiring all Virginia nursing facilities to share the data they report to NHSN with VDH before any facility can enter Phase 1.[7] Nursing facilities meet this requirement by joined the VDH group on the NHSN website. Instructions on how to join this group are available here.

Throughout the re-opening process, all nursing facilities should establish, and keep open, effective lines of communication with their local health department. Constant and open consultation with the local health department will ensure that nursing facility residents, and the community at large, remain as safe and healthy as possible. Nursing facilities are required to report any confirmed or suspected cases of COVID-19 to their local health department. Further, any time a facility is changing the phase it is in, whether the facility is progressing or regressing, it must complete the Phase Change Attestation Form at the end of the VDH guidance and submit it to their local health department. This will ensure that the health department remains abreast of the status of local nursing facilities and will require nursing facilities to attest to meeting the requirements for phase progression.

DSS Guidance to Assisted Living Facilities

DSS recently published guidance addressing the re-opening of assisted living facilities. DSS encouraged assisted living facilities to follow CMS’s general re-opening recommendations and the guidance VDH released for nursing facilities as much as practically possible. Further, DSS re-emphasized many of the factors that VDH discussed such as: staffing, availability of personal protective equipment, testing, cohorting, and screening. Each ALF should move through the phases of re-opening based on its own assessment of its unique circumstances; however, DSS emphasized that it was not stating each facility should re-open or lessen restrictions at this point. Any ALF that is re-opening must have a strict plan to mitigate risk (particularly with more mobile residents) and a plan concerning how it will move through the phases. ALFs are encouraged to collaborate and communicate with other area ALFs, the local health department, and licensing inspectors and agencies for guidance and advice as they tackle re-opening.


As DSS acknowledged, there is no “one size fits all solution” to phased re-opening that will work for every nursing and assisted living facility in Virginia. Each facility must evaluate its own unique circumstances to make the re-opening decision that is best for the health and safety of its residents and should frequently self-evaluate to ensure the facility is presently in the appropriate place in its phased re-opening. While physical health and safety is paramount, facilities cannot forget the psychosocial harm that some residents may experience as they remain isolated and unable to see and spend time with their family and loved ones. Each Virginia facility should keep all of this in mind as it fashions its own, unique re-opening plan.

Should you or your facility have any questions about the re-opening guidance, please contact Peter Mellette, Harrison Gibbs, Elizabeth Dahl Coleman, or Scott Daisley at Mellette PC.

This client advisory is for general educational purposes only and does not cover every provision and recommendation in the re-opening guidance. It is not intended to provide legal advice specific to any situation you may have. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.

[1] A copy of that memo is available here and a copy of a previous Client Advisory that addressed that memo is available here.

[2] If the facility had a shortage of nursing staff, clinical staff, or aides in the previous week’s reporting period it should not move to the next phase. According to VDH Epidemiology staff, a “shortage” may differ from the NHSN reported data in certain instances. If in doubt, facilities should check with local health departments.

[3] A facility must have an available one-week supply of N95 masks, surgical masks, eye protection, gowns, gloves, and alcohol-based hand sanitizer to move into the next phase.

[4] A nursing home onset case of COVID-19 is a new case of COVID-19 that originated in the nursing home. It is not a case where a nursing facility admits a new COVID-19 positive resident or a new resident with unknown COVID-19 status becomes positive within 14 days of admission.

[5] Residents who test positive for COVID-19 should remain in the “hot” cohort in the facility until they meet the CDC’s criteria for discontinuation of transmission-based precautions.

[6] The CMS Memo that detailed this requirement is available here.

[7] The memo from Dr. Norman Oliver discussing this requirement is available here.

Categories: Client Advisory