Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Delaware Governor Carney recently issued the Twenty-Seventh Modification: State of Emergency Declaration. The recent guidelines, which became effective September 4, 2020, contain several sector-specific requirements affecting the health and home care industries operating in Delaware.
In addition to the industry-specific guidelines, summarized below, employers should be aware of requirements that apply across all businesses and industries in Delaware.
Guidance for Long-Term Care and Older Adult Facilities
Facilities serving older adults, including skilled nursing facilities, assisted living facilities, hospice providers, and rehabilitation facilities with older patients must meet the following requirements:
- Screening and Restricting Access: Screen and restrict access by any individual who: (i) shows signs or symptoms of a respiratory infection such as cough, fever, shortness of breath or sore throat; (ii) in the last 14 days had contact with someone with a confirmed diagnosis of COVID-19; or (iii) is ill with respiratory illness.
Sanitation: Require all individuals permitted to enter the facility to wash their hands upon entry.
Provide Alternative Communication: Make online methods of face-to-face communication and phone calls available.
- Staff Restrictions:
- Travel – Facility staff must be restricted from international travel and should be monitored if they have travelled out of the country in the last 14 days.
- Contact/Symptom Monitoring – Staff must be monitored if they have been in contact with someone who is under investigation for COVID-19 or are showing any signs of respiratory infection such as fever, cough or sore throat.
- Reporting to Work Restrictions – Staff with these signs or symptoms must not be permitted to report to work. Additionally, if staff develops these signs or symptoms on the job, they must immediately stop working, put on a face covering, and self-isolate at home.
- Reporting: Require staff who develop these signs and symptoms to inform the infection preventionist and contact their primary care doctor. Additionally, the employer must contact the Department of Public Health (DPH) at 1-866-408-1899 for next steps.
- Sign Requirements: Display signage for vigilant infection prevention.
- Cleaning Requirements: Properly clean, disinfect, and limit sharing of medical equipment between residents and areas of the facility.
- Nursing Homes to Provide Sanitation Materials: Nursing homes also must ensure availability of alcohol-based hand sanitizers, tissues, no-touch receptacles for disposal, and face coverings at entrances, waiting rooms, and resident check-ins.
Public Health Requirements
Further, the recent guidance indicates that essential businesses that the Public Health Authority deems high-risk—such as nursing homes and similar facilities that employ caregivers— must meet the following additional requirements:
- Screening: Screen every employee, visitor, and member of the public upon entering.
- NOTE: The Public Health Authority develops and publicly posts the screening tool to be used by high-risk essential businesses.
- Signage: Display signage developed by the Public Health Authority that cautions individuals experiencing symptoms of COVID-19 not to enter the premises.
- However, this requirement does not apply to hospitals subject to the requirements of the Emergency Medical Treatment and Active Labor Act (EMTALA).
- Equipment Requirement: All hospitals, nursing and residential facilities, ambulatory health care services, home health agencies, and personal assistance service agencies in Delaware (as categorized by the Division of Small Business) must comply with the Public Health Authority’s guidance for the optimal use of personal protective equipment.
- Additional Staffing Considerations: Long-term care facilities must continue to provide 3.28 hours of direct care per resident per day. However, the staffing ratios required in 16 Del. Code § 1162 are now suspended.
- Training: The training requirements found in 16 Del. Admin. Code § 3215 are suspended under the recent guidance. Previously untrained feeding assistants now may undergo on-site training.
- Documentation Suspended: The requirement that long-term care facilities provide documentation to the Division of Health Care Quality regarding the amount of direct care time that was provided in an emergency by certain individuals, as required in 16 Del. Code § 1161(e), is currently suspended.
- Requirements for Returning Residents to Facilities: The recent guidance contains the following requirements for facility residents admitted to or seen at a hospital for COVID-19:
- Those residents must be allowed to return to the facility as long as the facility can follow the approved CDC recommendations for transmission-based precautions.
- If the residents must temporarily go to other facilities, such as an alternate care site, every effort must be made by the receiving and original facilities to transfer the residents back to their original facility as soon as possible.
- A negative COVID-19 test shall not be required prior to a resident’s return to a facility.
- Testing: All COVID-19 testing must be made available to those persons who meet criteria for such testing, as established and modified from time to time by DPH.
- All health care providers, facilities and entities that decide to offer testing must make that testing available to people meeting testing criteria without regard to the ability to pay, type of health insurance, or participation in any particular provider network.
- All health care providers that test for COVID-19 must comply with the Public Health Authority’s guidance for the use of such tests. Further, all providers must provide each patient tested with educational materials developed by the Public Health Authority.
- Note that nursing facilities, assisted living facilities, rest residential facilities, and intermediate care facilities for persons with intellectual disabilities have further requirements and restrictions under recent guidance. Additionally, the guidance authorizes the Public Health Authority to issue orders, as it deems necessary, to monitor, treat, prevent, reduce the spread of, and suppress COVID-19 in and around all facilities and agencies licensed by the Division of Health Care Quality under Title 16. Qualifying facilities and agencies should further consult counsel for any applicable orders.
Employers should consult counsel to ensure they implement the significant specific safety guidelines for the health and home care industries in compliance with local, state, and federal laws. For further industry-specific guidance, please consult Delaware’s up-to-date guidelines or counsel. Littler will continue to update developments with respect to the COVID-19 pandemic related to the health care industry in Delaware.