Michigan Prohibits Admission or Retention of COVID-19 Positive Patients in Nursing Homes, With Certain Exceptions

On October 22, 2020, Governor Whitmer signed Senate Bill (SB) 1094, which modifies MCL 333.21717 to prohibit the admission, retention, and transfer of COVID-19 positive patients to nursing homes, subject to certain exceptions.

Prohibition on Hospitals Transferring COVID-19 Positive Patients to Nursing Homes.  Senate Bill 1094 prohibits a patient from being admitted or transferred for care in a nursing home if the individual:

1. Has tested positive for COVID-19;
2. Is currently receiving treatment at a hospital; and
3. Has less than 72-hours remaining in the individual's isolation period.

Accordingly, Senate Bill 1094 effectively prohibits a hospital from discharging a COVID-19 positive patient back to an originating nursing home if the patient has less than 72-hours remaining in the isolation period. Importantly, however, if a hospital determines that it has reached surge capacity, this prohibition does not apply.

Admission and Retention of COVID-19 Positive Patients in Nursing Homes.  Beginning November 15, 2020, Senate Bill 1094 also prohibits an individual from being admitted or retained for care in a nursing home if the individual has tested positive for COVID-19, unless:

1. The individual has since recovered from COVID-19;
2. The nursing home is a "care and recovery center;" or
3. The nursing home demonstrates to the Michigan Department of Health and Human Services ("MDHHS") that it meets the requirements described in MCL 333.5145(1)(e) to accept an individual who has tested positive for COVID-19 within an approved designated area of the nursing home.

Care and Recovery Centers. A nursing home "care and recovery center" referred to under subsection (ii)  immediately above is a center within a nursing home that meets modified requirements in MCL 333.5145(1)(d). Care and recovery centers are readaptations of Michigan's "regional hubs," created by Michigan Executive Order 2020-50 on April 15, 2020. The regional hubs' goal was to safely handle COVID-19 patient discharges from hospitals to nursing homes and isolate COVID-19 positive admissions and residents from other non-infected residents. By May 28, 2020, Michigan had designated 21 regional hubs. Although MDHHS vetted nursing homes interested in being regional hubs, the program has been subject to criticism as some of the approved facilities have 2 or 3-star quality ratings on CMS' Five-Star Quality Rating System.

Senate Bill 1094 adds MCL 333.5145(1)(d), which requires care and recovery centers within nursing homes to:

1. Demonstrate each of the following to MDHHS:
   1. The nursing home has at least a 3-star rating based on the Five-Star Quality Rating System established by CMS.
   2. The nursing home is not operating under a denial of payment for new admissions under 42 CFR 488.417.
   3. The nursing home is not designated on CMS' Nursing Home Compare website as a "red-hand facility," indicating a citation for abuse.
   4. The nursing home meets physical plant capacity to designate a distinct area within the nursing home for individuals who have tested positive for COVID-19.
   5. The nursing home has dedicated staff for the sole purpose of treating individuals in the care and recovery center.
2. Agree to comply with any facility requirements that MDHHS considers appropriate to prevent the spread of COVID-19 in nursing homes, including, but not limited to, infection control safeguards, personal protective equipment, testing for COVID-19, and operational capacity.
3. Agree to comply with all of the following if an individual tests positive for COVID-19 and needs to be transferred to the care and recovery center within the nursing home or other location:
   1. Provide a notice to the individual; if applicable, the individual's legal representative; and, if the individual consents, the individual's emergency contact.
   2. A physician, a nurse practitioner, or a physician's assistant shall provide, in writing and in a time frame and manner determined by MDHHS, that the individual is medically stable for the transfer.
4. Any other requirements established by MDHHS in consultation with the Michigan Department of Licensing and Regulatory Affairs ("LARA").

It is anticipated that Michigan will reopen the care and recovery center application process with the enhanced selection criteria and that existing regional hubs that do not meet the criteria will be decommissioned. Approved Michigan care and recovery centers qualify for enhanced reimbursement.

Designated Area of the Nursing Home. If a nursing home is not a designated care and recovery center, Senate Bill 1094 also allows a nursing home to admit a COVID-19 positive patient if the nursing home demonstrates to MDHHS that it has an approved COVID-19 designated area of the nursing home. These requirements are set out in MCL 333.5145(1)(e) and include:

1. Demonstrating each of the following to MDHHS:
   1. The nursing home has a program for retaining and providing the appropriate level of care necessary for individuals who test positive for COVID-19 and that the program has an adequate supply of personal protective equipment and adequate testing capabilities, dedicated staffing, and operational capacity at the time of an individual's diagnosis.
   2. The nursing home's designated area meets proper infection control safeguards.
   3. There is no longer capacity at a care and recovery center and additional facilities are needed for individuals who test positive for COVID-19, unless MDHHS determines that there are rare and unique circumstances that must be taken to protect the health and safety of an individual.
2. Agreeing to continually evaluate and ensure its ability to meet each requirement for the approval of a designated area under this subdivision.
3. Meeting any other requirement established by MDHHS in consultation with LARA.

MDHHS is expected to implement a process to approve designated areas within nursing homes for individuals who test positive for COVID-19 by November 15, 2020.

Nursing homes interested in becoming care and recovery centers or have questions about the new nursing home admission policies should contact Honigman's Health Care Practice Group for more information.