16 April 2020

Governor Whitmer Issues New Executive Order Requiring Enhanced Protections For Residents and Staff of Long-Term Care Facilities

***Information and guidance in client updates was up to date at time of publication. During the pandemic, information and guidance has been changing rapidly. If you have any questions about the information contained in a client update, please contact the author(s) or your Miller Johnson attorney.***

Yesterday, April 15, 2020, the Governor signed Executive Order 2020-50. That Order outlines certain enhanced protections for residents and staff of long-term care facilities and imposes new obligations on long-term care facilities and hospitals.   The Order is effective immediately and continues through May 13, 2020.


What Are the Additional Protections for Residents and Obligations for Facilities?

The Order contains several new protections for residents and imposes a variety of new obligations on long-term care facilities. First, residents cannot be evicted or discharged involuntarily due to nonpayment or based on COVID-19 testing requirements or results. In addition, residents that relocate to housing outside the facility do not forfeit any right to return and facilities must accept their return if the facility has capacity and has the ability to meet the resident’s medical needs. Long-term care facilities must use best efforts to take advantage of telemedicine to provide residents with necessary medical care such as doctor’s visits, counseling and physical therapy.

During the remainder of the declared states of emergency and disaster, long-term care facilities must disinfect and clean facilities in accordance with CDC guidelines, and discontinue communal dining and group activities. The Order also imposes new reporting requirements on long-term care facilities.  Facilities, must document its inventory of PPE and provide such data to the Department of Health and Human Services (“DHHS”) upon request and notify the local health department of new COVID-19 affected residents within 24 hours of identification.

Section III of the Executive Order addresses transfers and discharges of COVID affected residents and will likely have the biggest impact on long-term care facilities and nursing homes in particular. First, long-term care facilities must transfer a COVID affected resident to a hospital if the resident is medically unstable. With respect to a medically stable COVID affected resident, nursing homes with a census below 80% must create a dedicated COVID unit. This “dedicated unit” could be a particular section of a nursing home or, for providers with several facilities, an entire facility could be converted into a dedicated unit. Long-term care facilities that are not nursing homes are not required to create a dedicated unit, but may do so.  COVID affected residents that are medically stable must be transferred to a dedicated unit if the facility has one.

If a facility does not have a dedicated unit or appropriate PPE, the resident must be transferred out of the long-term care facility in the following order of preference: 1) a regional hub; 2) a hospital in Michigan; 3) an “alternate care facility.” “Regional hubs” will be nursing homes designated by DHHS to exclusively provide care to COVID-19 affected residents. The order also contains provisions regarding when and how hospitals should discharge COVID-19 affected residents once they are stable and admission or readmission of such individuals by long-term care facilities. Fortunately, the order suspends strict compliance with state statutes, rules, regulations and policies that address bed holds, and pre-discharge and pre-transfer requirements. Importantly, federal requirements related to transfers and discharges still apply.

The Order’s requirements related to transfer, discharge, admission and readmission of COVID affected residents are complex and imposes different obligations depending on the type of facility operated by the client.  Clients are encouraged to contact their Miller Johnson attorney to discuss the specific steps their facility must take.

What Are the Additional Protections for Employees?

The Order outlines several additional protections for employees.  Employees who test positive for COVID-19 or display one or more of the principal symptoms of COVID-19 should remain in their homes as provided under EO 2020-36 and employers may not discharge, discipline or otherwise retaliate against them for doing so. Principal symptoms of COVID-19 is defined, for purposes of this Order, as fever, atypical cough or atypical shortness of breath.  Covered facilities also must use best efforts to provide appropriate personal protective equipment and hand sanitizer to all employees that interact with residents.  As soon as possible, but no later than 12 hours after identification, long-term care facilities must inform employees of the presence of a COVID-19 affected residents.  Facilities must also notify employees of any changes in CDC recommendations related to COVID-19.

What Employers are Covered? 

The EO covers:

  • Adult Foster Care Facilities
  • Alternate Care Facilities
  • Homes for the Aged
  • Long Term Care Facility (nursing home, home for the aged, adult foster care facility, or assisted living facility)