Rethinking Resident Agreements Amid Shifting COVID-19 Policies: Guidance for
Long-Term Care Facilities

Nursing homes and assisted-living facilities have been ground zero for the COVID-19 pandemic. Older individuals and those with preexisting conditions face a higher fatality rate from the virus, according to the Centers for Disease Control. Not only do the populations, most likely to live in long-term care facilities, face a higher fatality rate from the virus in general, but COVID-19 spreads more easily in confined environments with shared dining and social spaces. Aides, healthcare professionals and other staff interacting with multiple residents also create additional possibilities to transmit the virus. According to estimates, long-term care facilities are the site of 8% of all COVID-19 cases in the U.S. and 41% of COVID-19 deaths.

Facilities have been quick to adopt guidelines and best practices to protect residents, visitors and staff. But evolving facility policies have led to questions from current and prospective residents and their family members demonstrating new uncertainties in terms of liability and the need for additional clear communications.

As they navigate changing rules and needs and prepare for a pandemic with no clear end in sight, long-term care administrators are asking themselves what would be the best way to establish their COVID-19 policies and procedures that would present a concise and coordinated statement to all relevant parties, best assure compliance by residents and families, and provide as much protection from liability as possible. Facilities question whether they should amend their admission agreements or take less formal action.  There are multiple possibilities depending on a facility’s needs, but whatever the format of the documentation, facilities should ensure these clarifying documents address policies in three key areas – new residents, existing residents and acknowledgement of terms.

1. New and Prospective Residents – Establish Expectations

An admissions agreement details exactly what prospective residents and their families can expect, and what is expected from them, from the moment they enter the facility. Setting those expectations has taken on newfound importance as a result of the COVID-19 pandemic and its challenges. Families exploring long-term care options will undoubtedly have questions about how facilities are handling these challenges, and an addition or addendum to the admissions documentation is a good way to address them.

A detailed plan to help set new residents’ minds at ease can even serve as a competitive advantage. It can provide potential residents and families the peace of mind that the facility is taking the pandemic seriously and doing all it can to keep its residents safe and also ensures more restrictive policies are spelled out in advance. Limited visitation rules or a mandatory 14-day quarantine upon admission, for instance, are policies residents and family members may not like but should understand up front. Providing these details and all related COVID-19 policies as part of the admissions process are the most effective ways to secure buy-in and communicate key details.

2. Existing Residents – Clarify and Compile Policies

For current residents, day-to-day life at the facility may look considerably different as a result of COVID-19. In the last several months, changes have been extensive at many sites – new policies surrounding masks and social distancing for residents, visitors and staff, new dining procedures, new visiting policies, and much more. As facilities take steps to comply with state and federal rules and guidelines, updated policies and procedures should be shared with existing residents and family members.

Organizing all of these policies in a single place can be tremendously valuable for residents and their families. It offers an additional degree of transparency and straightforward communications that can address potential questions or concerns. What’s more, it helps clarify expectations for existing residents and family members who may not want to comply with specific rules, such as wearing masks or social distancing requirements. In some specific factual situations, facilities may be able to take steps to legally discharge residents who refuse to follow updated procedures. Whether simply through a detailed notice, or perhaps, and admissions agreement amendment, an updated communication allows facilities to spell out specific rules and policies before issues arise.

3. Acknowledgement of Terms – Minimize Liability

Caring for residents in a long-term-care setting necessitates close contact, interactions between staff and multiple residents, and some degree of shared facilities. The acknowledgment section of the new documentation, whether with new admissions or current residents, should establish that, despite following all best practices and recommended guidelines, it is possible for COVID-19 infections to occur. At a high level, this section can include some of the services and activities where transmission could occur, including bathing and grooming, meal preparation, laundry service and others.

At the same time, while written acknowledgement by residents and families creates an awareness on their part, it’s important for management to recognize that the acknowledgement cannot completely absolve a facility from liability or eliminate the potential for future litigation if there is an infection at the site. While specific liability waiver standards vary from state to state, federal law dictates that facilities cannot include liability waivers for anything required by law. Liability will still be determined on a case-by-case basis. 

4. Maintaining Effective Communication During Evolving Conditions

Clear and concise documentation, in whatever format is chosen, can be a key communication tool amid the uncertainty and fast-changing realities of COVID-19. Additional communications may be necessary, however, as a facility’s response to the pandemic evolves for specific issues such as outdoor visitation rules. In many cases, these more detailed supplemental policies can be referenced in the broader notices.

In navigating these documents and other key considerations for long-term care facilities at the epicenter of this ongoing pandemic, it pays to work with legal professionals who have experience maximizing the effectiveness of such communications. 

At Buchanan, our team of healthcare compliance attorneys, seasoned litigators and government relations professionals can help any facility ensure that legal challenges don’t create additional obstacles in its fight against COVID-19.