With Washington and Oregon governors issuing stay-at-home proclamations, many independent living communities are asking what this means for their residents and their ability to “enforce” these proclamations. The tension lies between not providing licensed health care and the desire to protect residents, particularly in those communities where independent living and assisted living residents may co-exist. The following are some frequently asked questions and our advice based on current CDC and state guidance, which can change in response to rapidly changing events:
1. Do you have to admit a new/prospective resident who is COVID-19 positive into your independent living community?
Probably not, because they pose a direct threat to the health safety of individuals in the community, but you should consult with your attorney before denying admission.
Most independent living settings are subject to federal and state Fair Housing Acts. The FHA prohibits discrimination in housing based on a protected class, one of those is having or being perceived to have a disability. Illness from COVID-19 may be considered a disability, as FHA defines “disability” broadly.
Notwithstanding the prohibition, FHA does not protect an individual whose residency would be a direct threat to the health or safety of other individuals, or who might cause substantial physical damage to others’ property, unless the threat or risk can be eliminated or significantly reduced by a reasonable accommodation.
2. What if the resident becomes sick, goes to the hospital or tests positive after moving in, what do we do? Do we have to allow a COVID-19 positive resident to come back to community?
Yes, you would probably have to allow them back to the community because they have a legal right to live there under the residency agreement and state law if they did not terminate their residency agreement. However, there are interventions that may be put into place to mitigate the risk this person poses to your other residents and staff, and other possible solutions. For example, returning with self-quarantine, the use of outside care providers, or moving the resident to an area to self-isolate are options to consider.
3. How do we best protect our independent living residents?
Since March 16, in Oregon and March 10, in Washington, long term care communities have had visitor restrictions in place to help prevent the spread of COVID-19. Both states have now expanded those measures in the form of “stay at home” orders that would apply to independent living. The following are state-specific proclamations and restrictions applicable to independent living:
Oregon Executive Order No. 20-12:
- Non-essential social and recreational gatherings outside of the home are prohibited immediately, regardless of size, if a distance of at least six feet between individuals cannot be maintained. All recreational activities hosted in long term care communities may only be conducted if a distance of six feet between individuals can be maintained.
- Residents are not permitted to leave their homes to patronize businesses.
- Residents may go outside for recreational activities where a six-foot distance between individuals can be maintained.
- Certain businesses where close personal contact is impossible to avoid must be closed. These businesses include barbershops and hair salons, gyms and fitness studios, spas, non-medical massage therapy services, nail salons, senior activity centers, social and private clubs, tennis clubs, theaters, and yoga studios. If you maintain any of these businesses in your communities, they should be closed for the time being.
- All individuals are directed to minimize all non-essential travel. Travel from a home or residence for obtaining or providing food, shelter, essential consumer needs, health care, or emergency services are permitted. When individuals need to leave their homes, they should maintain social distancing of at least six feet from any person who is not a member of their immediate household at all times.
Washington Proclamation 20-25:
- All people in Washington must immediately cease leaving their place of residence except to (1) conduct or participate in essential activities and/or (2) for employment in essential business services.
- Essential activities include: obtaining necessary supplies and services for household members, engaging in activities for the health and safety of the family (i.e., seeking medical services, obtaining medical supplies, or medication), caring for a family member or friend, and engaging in outdoor exercise activities.
- All public and private gatherings and multi-person activities must immediately cease. However, individuals who are part of a “residential living unit” may still participate in public and private gatherings with the individuals of their living unit. For example, a pair of individuals that share an apartment in a community may take a recreational walk outside.
- All non-essential businesses operated within long term care communities should cease operations no later than midnight on March 25, 2020. Non-essential businesses in the long term care setting may include nail salons, theaters, exercise studios, clubs, and spas.
- Workers in long term care communities are considered part of the “essential workforce” and are not required to work from home.
- Directives will remain in effect until midnight on April 6, 2020, unless extended beyond that date.
4. Has the CDC issued any guidance to help keep our independent living residents safe during this outbreak?
Yes, the CDC issued guidance specific for senior living communities. You can find that guidance here. In a nutshell, the CDC is recommending you do the following:
- Cancel all public or non-essential group activities and events;
- Clean and disinfect all common areas and shared facilities;
- Inform residents, workers, volunteers, and visitors about COVID-19;
- Encourage personal protective measures;
- Help residents establish a “buddy” system to ensure they stay connected;
- Educate residents on preventing COVID-19;
- Consider limiting the number of non-essential visitors;
- Screen, when possible, and advise workers and essential volunteers; and
- Have residents isolate and self-monitor if they are sick.
5. Can we post a notice on the door if someone is quarantined?
We recommend that you not post a notice on the resident’s door unless you obtain the resident’s permission to do so. The resident may also withdraw permission at any time.
6. Can the independent living provider disclose to other residents that a resident has tested positive?
To protect the privacy of residents, you must not disclose resident names or identifiers unless they give you permission to do so. You can generally say that “We have X number of cases in our community,” without disclosing the resident’s name.
7. Can we require a resident to notify us if they get sick?
Yes, you should require a sick resident to notify the Executive Director so they can take steps to protect staff and residents in the community.
8. Now that there is a stay-at-home proclamation, can we prevent residents from leaving the community? Should we allow them back in? Should we screen them?
No, a community cannot prevent or otherwise restrain a resident from leaving the community. However, the community should regularly communicate the stay at home proclamation as requiring residents to stay in their apartment as much as possible. If a resident elects to nonetheless leave the community, the resident should be allowed back but screened upon their return.
For additional employment and operational guidance on COVID-19 relating to independent living, assisted living communities, or skilled nursing facilities, please stay tuned for additional updates or contact us directly.