May 29, 2020

Emergency administrative rules issued by the Illinois Department of Public Health (IDPH) on May 28, 2020 require all skilled and intermediate nursing care facilities to "conduct testing of residents and staff for the control or detection of communicable diseases when … directed by the Department …" In IDPH's accompanying news release, IDPH mandates "testing all residents and staff for COVID-19."

Nursing homes must read IDPH's news release and emergency rules together to understand exactly what IDPH expects. This client bulletin summarizes the requirements.

The news release first says that nursing homes must test all residents and staff for COVID-19. It does not, however, say when the tests must be completed.

Both the emergency rules and the news release also require that facilities have an arrangement with a lab to process these tests. Facilities must send the numbers of positive, negative, and "indeterminate" test results for both residents and staff to IDPH or a local health department, as directed.

In addition to testing, the news release requires facilities to provide a copy of its infection control policies and procedures to each resident, the resident's family member, or the resident's representative, even if they have not requested a copy of those policies and procedures. Facilities must also make such policies and procedures available to public health officials upon request. The emergency rules and news release state that the appropriate facility committee must annually review these policies and procedures, and provide the updated policies and procedures to IDPH or the local health department upon request.

The emergency rules mandate that facilities comply with IDPH's infection control recommendations, or those of a local health department. This extremely open-ended mandate requires clarification from IDPH. Given that IDPH has issued many different and changing recommendations as the COVID-19 pandemic has progressed, we strongly recommend that all facilities pay attention to every IDPH email that might provide updated guidance, and check IDPH's website regularly to ensure compliance.

The emergency rules are licensure rules only. They will not affect certification status. But given that IDPH's surveyors can cite a facility with both federal certification and state licensure findings, the more that a facility complies with both federal and state infection control guidance during the pandemic, the less likely the facility will be cited with federal or state violations. Any failure to comply with the IDPH emergency rules will not affect survey cycles. Noncompliance could result in licensure violations and fines.

The emergency rules are in effect for a maximum of 150 days from May 28. In the meantime, IDPH will solicit comments before a final rule can be adopted.

The full text of the rule is available online.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.