Recent Actions that Impact the Nursing and Assisted Living Industry

nursing home
Judge Dan Hinde

Executive Order 2020-22: Protection of Vulnerable Residents in Residential Care Settings

On April 8, 2020, Arizona Governor Doug Ducey entered Executive Order 2020-22 (“EO 2020-22).  It can be found on the governor’s Executive Order page.  EO 2020-22 aims to stem the spread of COVID-19 in nursing care institutions and other residential settings such as medical group homes and Assisted Living Facilities.

EO 2020-22 does several things.  First, it requires all Residential Care Institutions (this constitutes a healthcare institution other than an NCI or hospital, such as an Assisted Living Facility) and Nursing Care Institutions, to follow infection control guidance promulgated by the Centers for Medicare and Medicaid Services (“CMS”) and the Centers for Disease Control (“CDC”).  It requires these facilities to cohort COVID-19 positive and COVID-19 status unknown residents from those with a negative status and to make sure that each cohort is staffed by different individuals.  It also requires these facilities to develop safe discharge and readmission plans for residents who may need to be hospitalized due to COVID-19 infection.



Second, these Institutions must also provide residents with an electronic form of visual communication, such as FaceTime or Zoom, if visitation has been restricted.  It is anticipated that challenges concerning sufficient access to equipment and resident confidence using electronic equipment may arise.

Third, Section 4 of EO 2020-22 requires Nursing Care Institutions to report COVID-19 infections, the number of transfers to and from an acute hospital, and the number of type of personal protective equipment on hand and used that week, to the Arizona Department of Health Services (“DHS”) on a weekly basis.  Section 4 omits any reference to Residential Care Facilities.  It is unclear if this omission was intentional or merely an oversight; however, based on the plain text of the Executive Order, this requirement does not apply to Assisted Living Facilities.

Notably, this Executive Order will terminate when the public health emergency declaration related to COVID-19 is lifted.


PPC for Legal

Although not all of EO 2020-22 applies to Assisted Living Facilities, many parts of it do. Assisted Living Facilities would be wise to follow CMS, CDC and DHS guidance on infection control and distancing COVID-19 positive patients. They should also develop policies as to when residents should be discharged to an acute hospital and the concomitant readmission process. Finally, institutions that have reporting requirements must be sure to follow them and make reports on a weekly basis to DHS.

DHS Director Dr. Cara Christ has taken the position that this reporting is protected by HIPAA and will not be made available to the public.

Executive Orders 2020-13, 2020-23 and 2020-30: Enhanced Surveillance Advisory

Beginning on March 23, 2020, Governor Ducey entered a series of executive orders concerning enhanced surveillance.  Although generally tailored to apply to hospitals and laboratories, Executive Order 2020-13 (“EO 2020-13”), dated March 23, 2020, grants DHS and other local health authorities access to confidential patient information, including medical records, to assist in obtaining accurate data concerning COVID-19 infections.  EO 2020-13 terminates after 60 days unless renewed.

Governor Ducey subsequently entered Executive Order 2020-23 (“EO 2020-23”) on April 8, 2020 which, among other things, reiterates DHS and local health authorities’ ability to access necessary patient information to curb the spread of COVID-19.  It also encourages DHS and local health authorities to share personnel, equipment, supplies and other resources.  EO 2020-23 makes clear that it in no way rescinds or terminates any of the reporting requirements outlined in EO 2020-13.


Computer Forensics

Executive Order 2020-30 (“EO 2020-30”; entered on April 14, 2020) builds on EO-2013 and EO 2020-23.  It allows DHS and other local health authorities to inform public officials in charge of emergency services of the address of individuals within their jurisdiction who have tested positive for COVID-19.  The receiving entity and individual must keep this information strictly confidential and addresses must be purged from the list every fourteen (14) days.

While these orders do not speak directly to Nursing or Residential Care Institutions (including Assisted Living Facilities), they do emphasize two important points.  The first is that COVID-19 reporting to DHS and/or other local health authorities is mandatory.  The second is that any data reported shall be kept confidential and only used for the limited purpose of controlling the spread of COVID-19.

These orders will remain in effect for no longer than 60 days from the date of execution unless reissued.

Executive Order 2020-28: On the Job Training

On April 14, 2020, Governor Ducey entered Executive Order 2020-28 (“EO 2020-28”) directed at on the job training for assisted living facility caregivers.

A.R.S. § 36-446.15 sets forth the statutory training requirements for assisted living facility caregivers:

  • Notwithstanding any other law, a person who successfully completes the training and competency requirements developed by the Arizona health care cost containment (“AHCCCS”) system administration for in-home direct care workers satisfies the training requirements for assisted living facility caregivers, except for medication administration training required by the assisted living facility caregiver’s scope of practice.
  • An individual who meets the requirements specified in subsection A of this section and who registers for a medication administration examination is required to take and successfully complete only the part of the assisted living facility caregiver examination that covers the subject of medication administration.
  • The testing of an individual for medication administration competency: (1) shall be conducted in accordance with the testing standards adopted by the board; and (2) may be conducted by a training school approved by the board or by the assisted living facility that provided the training for the individual.

The curriculum requirements for assisted living facility caregiver training currently require classroom instruction.  Recognizing that many existing classroom training programs are currently unavailable as a result of the COVID-19 outbreak, EO 2020-28 seeks to address the immediate need to expand, not contract, training for additional assisted living facility caregivers under A.R.S. § 36-446.15.

More specifically, EO 2020-28 allows an assisted living facility caregiver to obtain on-the-job training if the caregiver completes 62 hours of training under the supervision of a licensed healthcare professional and passes the board required examination with a score of that least 75%, as long as the caregiver passes the examination within six months of completing their on-the-job training.  Licensed physicians, registered nurse practitioners (NP), registered nurses (RN), practical nurses,  physician assistants (PA), and/or certified assisted living managers with at least five years of experience all constitute “licensed healthcare professionals” for purposes of the order.  Nothing in the Executive Order relieves the caregiver of the requirement to obtain a fingerprint clearance card before performing any services.

It is important to note that before any facility can begin on-the-job certification training, it must first provide a training plan based on board curriculum to the Board of Examiners of Nursing Care Institution Administrators and Assisted Living Facility Managers (the “Board”) for review.  The relevant board curriculum is outlined in R4-33-703 – Curriculum for Assisted Living Facility Caregiver Training Program. Assisted Living Facilities should carefully review the required board curriculum to ensure more streamlined consideration of their on-the-job training program by the Board.

Because the order will be considered for repeal or revision at least every two weeks following issuance, some assisted living facilities may face tough questions about whether implementing an on-the-job training program is worth the investment.  For example, the training materials have to be developed and submitted to the board for review.  EO 2020-28 does not specify the amount of time the Board has to complete its review or the scope of the review and approval process.  After approval by the Board, potential caregivers must also complete 62 hours of training.  It is possible that EO 2020-28 could be repealed shortly after caregivers complete their training.

As such, assisted living facilities should carefully weigh the immediate need for additional caregivers against the costs associated with training and the risk that certification may subsequently become invalid.

Upcoming Requirements for Notification of Confirmed COVID-19

On April 19, 2020, CMS announced new regulatory requirements concerning notification of (1) residents and their families and representatives and (2) the CDC when COVID-19 is detected in a nursing home or assisted living facility.  Of note, CMS defines “nursing home” more broadly than Arizona does so it captures many types of assisted living facilities that offer nursing or other medical care.

CMS is now requiring nursing homes to notify residents, their families and representatives within twelve (12) hours of a confirmed case of COVID-19 in a resident or staff member.  The same notice is also required if three (3) or more individuals develop respiratory symptoms within seventy-two (72) hours.  In addition, nursing homes will be required to send weekly updates to inform residents and their families and representatives of the actions implemented to prevent the spread of COVID-19. CMS has not prescribed any specific format for this but has indicated that a rulemaking process will follow.

In addition, nursing homes will be required to report confirmed cases of COVID-19 within twelve (12) hours to the CDC.  They will also be required to report any instances where three (3) or more individuals developed respiratory symptoms within seventy-two (72) hours.  This is in addition to the reporting that is already required by county and state health departments.  As with the resident notices, CMS has not indicated a form, method or mechanism for reporting or transmission to the CDC.  It has, however, stated that, “[t]his information may be retained and publicly reported in accordance with law.”

CMS has indicated that a rulemaking process will follow shortly to create reporting specifics. Failure to report could result in CMS action.

Nursing homes and assisted living facilities should start tracking this data and should continue reporting it to state and local authorities.  You should also develop a resident notice if you have not already and make sure that you are following all CDC guidance on limiting the spread of COVID-19.

This would also be a good time to consider media strategy and outreach as this data will soon become public.  Finally, you should stay abreast of the CMS rule-making process as this should provide more clarity soon.

COVID-19 Resources for Assisted Living Facilities:

CDC Guidance for Retirement Communities and Independent Living
CDC Preventing the Spread of COVID-19 in Retirement Communities and Independent Living Facilities (Interim Guidance)
DHS Long-Term Care and Other Residential Facilities Pandemic Influenza Planning Checklist
AZDHS Arizona’s emergency response to the COVID-19 outbreak.
AZDHS Long-Term Care COVID-19 Guidance
DHS/CDC Template Recovery Plan for Long Term Care Facilities
CMS 2019 Novel Coronavirus (COVID-19) Long-Term Care Facility Transfer Scenarios
CMS COVID-19 Long-Term Care Facility Guidance
CMS Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes (REVISED)

Heather Macre and Courtney Beller

Heather Macre is a director in Fennemore Craig's litigation department in Phoenix where her work focuses in the areas of business litigation, healthcare and bankruptcy. Courtney Beller serves as vice-chair of the firm's business litigation practice group.

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