How COVID-19 Affects the Rights of Those Living in Senior and Residential Living Facilities
25 Aug 2020
UPDATE: On September 3, 2020, the Colorado Department of Public Health & Environment issued guidance for indoor visits in nursing and other residential living facilities. These guidelines expand opportunities for residents to visit with family and empower facilities to enact stricter requirements based on their local conditions. If you have questions about how these guidelines change your circumstances contact, Thomas J. Wolf or Michelle R. Thom.
August 25, 2020 — Residents and operators of nursing, senior, and other residential living facilities find themselves making difficult choices as the COVID-19 pandemic continues. Operators of any residential facility walk a fine line in balancing residents’ desires and rights for freedom of movement, taking measures to keep residents and staff safe, complying with state and local regulations, and managing liability risks. Since there is no modern precedent for the COVID-19 crisis, residents and operators are adjusting day-by-day. With the pandemic seemingly likely to be a part of our lives for months ahead, we likely will begin to see frustration expressed both by those who want more restrictions and those who are willing to trade less safety for more freedom.
Operators are caught in the middle, and residents and their families are frustrated.
Start by reviewing the lease
To try and untangle the problems the pandemic has brought to light, you must start by reviewing the lease.
As detailed as leases have become, few, if any, anticipated a pandemic. Most give the operators the right to take measures to protect residents and employees, and that usually is read as the right to close swimming pools, exercise rooms, and other common areas. In most cases, operators can remove such amenities at their discretion. In residential living facilities, we have seen operators restrict residents to their rooms and ban all but essential visitors, which usually does not include family.
Healthy residents might feel like prisoners in locked-down facilities. The lease also gives the residents rights. While vulnerable populations must be protected, we expect that we will see push back in the courts both by vulnerable residents and by less vulnerable residents.
In most cases, state and local laws and regulations likely override lease provisions that conflict with such laws and regulations. The starting point should be to look at the COVID-related orders issued by the State of Colorado so that you are properly informed, but know that all requirements and orders are subject to constantly changing circumstances. Due to nuances in the restrictions, all facilities are not treated the same. Some facilities may also be subject to Medicare and Medicaid guidelines, and counties or local city governments often have their own rules.
It can be troubling and even dangerous if relatives suspect their family member is not being cared for properly or is being abused in a locked-down facility. Any facility that is licensed is subject to inspection by the state or county health authorities. File a complaint if you suspect negligence and can’t get into the facility.
If you haven’t been able to visit your family at a residential facility, talk to the facility director. We are seeing more facilities compromise by allowing family to visit during certain hours if they follow social distancing guidelines and sign a waiver relieving the facility of liability. There may also be temperature checks and questions about recent travel and whether they have been exposed to the virus.
The road ahead
Know the state and local rules that apply to your living situation. A compromise that balances individual rights to safety and freedom of movement may be achievable, while at the same time recognizing that residential living facilities will be reluctant to deviate from current best practices.
Residents who believe their facility is compromising their safety – or who believe restrictions go way beyond what is required by law, should seek advice from respected advisors to determine their options.
The information provided herein is intended as general information and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.