Practical considerations for seniors’ housing owners, operators and managers through the COVID-19 pandemic

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Background

In response to the COVID-19 pandemic, on arch 17, 2020, by Order in Council 080/2020, a state of public health emergency was declared in Alberta under section 52.1 of the Public Health Act (the PHA), with effect for a period of 90 days. This state of emergency expired on June 15, 2020. Through this time period, there have been extensive regulatory changes and additional safety protocols and procedures implemented by the province through a number of orders issued by the Chief Medical Officer of Health, Dr. Deena Hinshaw, and Alberta Health Services (AHS) (through provisions within the PHA). In issuing these orders, the Chief Medical Officer of Health was given a number of statutory powers for the protection of public health during this state of emergency, the scope of which was quite broad. Operators of seniors’ housing to which these orders were applicable, were required to design and implement additional standards and protocols to visitation, staffing, screening, and cleaning procedures within their facilities.

Summary of the general orders in Alberta

CMOH Order 14-2020 was issued on April 28, 2020, and placed restrictions on visitation of facility residents by non-residents. Its application was relevant to operators1 of health care facilities2 located in the province of Alberta, staff,3 residents,4 as well as the families and friends of those residents who live within the facilities to which the order applies. In summary, it prohibited indoor visitors except in very limited circumstances, in which case, only a single individual, the “designated essential visitor,”5 was permitted.

MO 625/2020 (Health), issued on April 17, 2020, followed by CMOH Order 10-2020, issued on April 10, 2020, and later amended by CMOH Order 12-2020, issued April 28, 2020, and by CMOH Order 23-2020 issued May 25, 2020, required operators of health care facilities to provide certain information to the Chief Medical Officer of Health.6 The orders further established rules and requirements for responding to a suspected, probable or confirmed outbreak of COVID-197 affecting staff and/or residents, and the use of standardized health assessment questionnaires and measurements against standardized symptoms.

In addition, CMOH Order 23-2020 specifically provided the expectations for on-site and off-site access to health professionals, expectations of staff and operator disclosure, provided for routine practices and additional precautions for staff providing direct resident care or working in resident care areas, and provided a sequence of steps required when putting on personal protective equipment (PPE).8 CMOH Order 23-2020 also set out additional precautions that need to be taken for new admissions to the facility, and the movement of residents between settings.

Additionally, we are aware of two specific ministerial orders issued in Alberta in order to protect public health within specific long-term care or similar care facilities which have been particularly impacted by COVID-19 outbreaks. In one case, a ministerial order authorized AHS to immediately take over the role of operator from the incumbent operator. In the second, the ministerial order authorized the immediate replacement of the incumbent operator with another operator. Each ministerial order effectively suspended the applicable Master Services Agreement and related agreements governing operation of the affected care facility and expressly authorized AHS to use any of the powers of a regional health authority granted under the PHA and other powers listed in the ministerial order in relation to the care facility.

Expiry of state of emergency and regulatory requirements going forward

With the recent expiry of the state of public health emergency, it remains uncertain as to what seniors’ housing operators are required to do in the after math of COVID-19 in order to uphold the requisite standard of care owed to their residents, residents’ families, staff, service providers, and visitors to the facility. Generally, the majority of public safety requirements for COVID-19 have come from general guidelines from public health bodies. Overall, they require employers and business owners to take reasonable precautions to prevent the spread of the virus. The governmental guidelines may not be binding law, but it is likely that government safety inspectors who enforce health and safety legislation will take the position that these guidelines constitute “reasonable precautions” and will enforce them in practice.

AHS has published a number of guidelines on their website for the prevention and control of outbreaks in acute care, and in congregate and supportive living facilities. Each sets out similar protocols to those that were imposed under the orders discussed above. On this basis, it is likely advisable that operators of seniors’ homes continue to implement the measures and steps taken during the pandemic until further direction is received from Alberta Health or AHS.
Links to these guidelines are included here for reference:

Further, operators should implement processes and strategies to demonstrate their compliance with applicable orders by documenting their steps. While there may not yet be clarity on the procedural and administrative requirements placed on operators of seniors’ homes, it is all but certain that such operators will be subject to increased scrutiny from the regional health authorities going forward and may be required to more routinely document their actions.

Liability for not complying with the applicable guidelines and/or legislation

Given that government safety inspectors who enforce health and safety legislation will likely take the position that the guidelines constitute “reasonable precautions” and will enforce them in practice, it is likely the case that during various routine audits the inspectors will hold the operators accountable for such additional standards and precautions.

Where a facility operator fails to comply with ministerial orders or to meet the requisite standard of care applicable in the circumstances, there are a number of possible consequences ranging from administrative fines, to suspension of licenses, to criminal charges.9 For example, operators contravening applicable legislation may be subject to administrative penalties including fines, license suspension or cancellations with notice, or may be made a party to civil actions where a court order may be required for immediate action. Alternatively, where the non-compliance can be remedied by appointing an official administrator, the Minister may suspend or cancel an operator’s licence or permit and require the immediate release of the facility to the control of the designated incoming administrator.10

Practical Recommendations for operators

  1. Documentation
    • Operators should make an effort to document all of the steps and responses to the various orders and accompanying guidelines during and following the state of public health emergency. Should operators be asked to contribute to future regulatory changes, such documentation will be invaluable. Such documentation may also be needed as evidence that the operator is meeting regulatory requirements. This documentation will place the operator in a strong position to demonstrate their compliance and mitigate their risk of becoming subject to the penalties outlined above.
  2.   Open lines of communication with stakeholders
    • Operators should establish open lines of communication with all stakeholders including funders and regulators and use the opportunity to promptly: (i) clarify the terms of the ministerial order and/or guidelines that remain unclear to the operator; (ii) advise funders and regulators in the event of inability to meet the requirements of any order and/or legislation.
  3. Updates to residents and their families
    • Operators should establish a process to ensure regular, timely, transparent and consistent communication to all other stakeholders’ including staff, residents and their families.
      • Residents, families and friends are also responsible for following all Public Health guidelines applicable to all Albertans.11
  4. Physical distancing
    • To ensure appropriate physical distancing requirements are being followed, it may be useful to identify and mark the designated outdoor area that a resident and their visitors may use during a visit, creating sign in and screening sheets, and ensuring all staff, residents and visitors agree to comply with guidelines within the applicable CMOH order.
    • The Operator may consider the implementation of appropriate scheduling systems and resources to ensure that designated essential visitors on site are screened and guided while one site. The operator needs to ensure an adequate number of staff are present to facilitate safe visitation.  
    • The following expectations for residents going off site facility property have been provided to residents and operators though various orders:
      • Maintain physical distancing
      • Wear a mask at all times and ask anyone you may be with to also wear a mask
      • Ensure safe transportation
      • Maintain good hand hygiene
      • Be screened upon re-entry
    • The operator may consider setting up schedules and phone in systems so as to allow all residents equal access to these visitation opportunities and guidelines. In larger facilities, this includes managing scheduling, screening, visiting and movement for hundreds of residents.
  5. Admissions
    • The impact for admissions during this COVID-19 time are challenging for residents, staff, families and operators. All residents are required to isolate for 14 days upon admission. PPE is required during this time of isolation. Visitation is limited during this time.
  6. Planning for a possible pandemic second wave
    • Operators should continue to work with their various stakeholders to ensure that they are well equipped to respond to any future COVID-19 related pandemics. Such work could include ensuring an adequate supply of PPE, implementing continued industry-led workforce training to address any worker shortages, and fostering and enhancing innovation including improving access to new technology for better communication and services (meal prep/ride sharing) for seniors.12 Providers should also consider workforce planning and continued communication with residents, families and loved ones on these initiatives so as to include them in this process and place the possibility on everyone’s forefront.
  7. Compliance with various other legislation
    • Operators are required to be aware of and comply with various other legislation, such as privacy legislation.

  1. Operator means any operator, service provider, site administrator or other staff member responsible for areas impacted by these expectations.
  2. Health care facility defined as an auxiliary hospital under the Hospitals Act, a nursing home under the Nursing Homes Act, a designated supportive living accommodation or licensed supportive living accommodation under the Supportive Living Accommodation Licensing Act; or a lodge accommodation under the Alberta Housing Act.
  3. Staff defined as any person employed by or contracted by the site, or an AHS employee or other essential worker.
  4. Resident defined as any person who lives within one of these sites (sometimes called clients e.g., by group homes).
  5. Defined in CMOH Order 14-2020 as a single individual visitor designated by the resident.
  6. Subsection 53 (2.3) under the PHA.
  7. A site with no residents or staff showing symptoms is in “outbreak prevention” mode; a site with one or more individuals showing signs of COVID-19 is in “site under investigation mode”; and a site where there is one or more confirmed COVID-19 cases is considered to be in “confirmed COVID-19 outbreak” mode.
  8. As per Appendix A of the CMOH 23-2020 surgical/procedure masks required for staff and designated essential visitor use will be procured and supplied to all congregated facilities by AHS. This is inclusive of facilities with or without a contract with AHS.
  9. See for example PHAs. 73; SLA ss. 14, 22; NHA s. 22.
  10. NHA s. 16.
  11. Government of Alberta guidelines for protecting residents at congregate care facilities, accessed online July 2, 2020 at https://www.alberta.ca/protecting-residents-at-congregate-care-facilities.aspx.
  12. https://bccare.ca/2020/06/2021-budget-submission-bccpa-prioritizes-pandemic-second-wave-planning/

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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