Governor Larry Hogan, the Maryland Department of Health (MDH) and the state’s long-term care provider community continue to take aggressive steps to combat COVID-19 in nursing homes and other long-term care settings.

Most recently, on April 29, 2020, Governor Hogan issued Executive Order Number 20-04-29-01, which amended and restated all previous orders for nursing homes and other senior facilities and imposed new strict compliance requirements. The MDH published a new accompanying Directive and Order further clarifying the requirements from the Governor’s Executive Order.

Directives for Other Long-Term Care Facilities

While nursing homes have garnered the bulk of attention from regulatory authorities and the public, it is important to note that other long-term care settings also serve populations that are particularly susceptible to the COVID-19 virus. Maryland officials clearly recognize the potential extent of this threat to seniors in these care settings, and notably, Governor Hogan’s April 29 Executive Order authorized the Secretary of the MDH to issue directives deemed necessary to monitor, treat, prevent, reduce the spread of and suppress COVID-19 in and around assisted living facilities, hospice facilities, residential treatment facilities, home health agencies and any related institution.

New Orders and Directives

While strict limitations on visitor access to facilities and other related operational guidance from prior CMS, CDC, and MDH directives continues, the key provisions of the most recent Maryland Orders include:

• Universal Testing. Nursing homes are required to test all residents and staff for COVID-19. MDH, a local health department or MDH-designated Response or Strike Teams may order or perform the testing (in addition to licensed labs), and individuals who refuse to comply will be placed in quarantine.   
• Compliance with Response or Strike Teams. Nursing homes must comply with all directives and orders of MDH-designated Response or Strike Teams (created by Governor Hogan on April 19, 2020), including the provision of full access to the nursing home, its residents and its staff.  
• Daily COVID-19 Evaluations. Each nursing home resident must be evaluated daily by clinical staff for COVID-19, including the recordation of vital signs and any new or worsening signs or symptoms. Significant findings must be reported immediately to the supervising physician or other staff member. 
• Bridge Teams. As part of surge preparation, Governor Hogan has ordered supplementation of Strike or Response Teams with new “Bridge Teams,” which are intended to provide emergency clinical staffing to nursing homes undergoing a staffing crisis. Each Bridge Team is composed of a registered nurse and five to seven aides, sufficient to care for up to 100 residents per shift.
• COVID-19 Reporting. Facilities must report to residents, residents’ representatives and staff within 12 hours of the occurrence of a single confirmed COVID-19 infection, and/or whenever three or more residents or staff have new-onset respiratory symptoms within 72 hours. Reports must include information on actions taken to mitigate, prevent or reduce the risk of transmission. In addition, facilities must provide daily reporting of COVID-19 information to the Chesapeake Regional Information System for Our Patients (CRISP) and local health departments.   
• Personal Protective Equipment (PPE). All nursing home personnel who are in close contact with residents must use appropriate PPE, such as masks, face shields, gloves and gowns. Facilities are required to follow designated processes for requesting and optimizing the supply and use of PPE, such as CDC, CMS and MDH guidelines, and are instructed to check all applicable guidelines daily for updates. 
• Facility Staffing. All facilities must implement specific staffing requirements, including establishing a cohort of staff assigned to care for known or suspected COVID-19 residents; and designating rooms, units or floors as separate observation areas to keep newly admitted or readmitted residents for 14 days on contact and droplet precautions while being observed every shift for signs and symptoms of COVID-19.

Compliance with all nursing home and other long-term care provider Orders and Directives is mandatory, and a Special Safety and Compliance Officer has been designated specifically to monitor facilities’ compliance. Failure to comply can result in fines or imprisonment.

Maryland Leading the Way

Despite the attention and growing concern about the health issues this pandemic is causing in nursing homes throughout the country as a whole, Maryland authorities and long-term care providers have been among the most proactive in addressing these issues. By all accounts, Maryland providers on the whole appear to be working incredibly diligently and cooperatively to ensure full compliance with all applicable guidance. Providers should continue to carefully review all directives and guidelines and take full measures to ensure compliance to protect their residents, and also to mitigate exposure to liability from government authorities and potential plaintiffs.

This alert was written by Robert Wells and Christopher Tully, lawyers in the Health Care practice group at Miles & Stockbridge.

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