Seniors’ Housing in Alberta: Regulatory changes due to COVID-19

On March 17, 2020, by Order in Council 080/2020 (the “Order”), a state of public health emergency was declared in Alberta under section 52.1 of the Public Health Act (the “PHA”) in response to the COVID-19 pandemic, with effect for a period of 90 days.  That Order will lapse on June 15, 2020 unless otherwise extended by the Alberta Government.  The Order may also be terminated at any time, either for the entire province or a portion thereof, on the advice of the provincial Chief Medical Officer if the public health emergency is determined to no longer exist in that area. 

While such Order remains in effect, the Chief Medical Officer of Health, Dr. Deena Hinshaw, and/or AHS are given a number of statutory powers for the protection of public health.  To keep the applicable number of orders relatively low, the Alberta government has made efforts to supersede previous orders with new orders.  As of May 26, 2020, in addition to any specific ministerial orders, there are four main applicable orders to Seniors’ Housing facilities: CMOH Order 14-2020, MO 625/2020 (Health), CMOH Order 12-2020, and CMOH Order 23-2020.

Visitation:

CMOH Order 14-2020 was issued on April 28, 2020, and placed restrictions on visitation of facility residents by non-residents. Its application is relevant to operators[1] of health care facilities[2] 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 prohibits indoor visitors except in very limited circumstances, in which case, only a single individual, the “designated essential visitor”[5], is permitted. These circumstances include:

1. where the resident’s quality of life and/or care needs cannot be met without the designated essential visitor’s assistance or;
2. circumstances where a resident is at the end of their life (last two weeks of life[6]).

Outdoor visits between a resident, their designated essential visitor, and one other person (total group size of 3, including the resident) are now being supported, when desired. All outdoor visitors must continuously mask during the visit and follow appropriate physical distancing requirements.

Any visitor who intends to enter a facility, and/or cannot maintain physical distancing during an outdoor visit must have a health assessment screen completed at the facility. As per the order, the screening shall involve the following:

1. Temperature check
2. COVID-19 Questionnaire
3. Confirmation of identity
4. Documentation of arrival and exit times (if entering the building).

Some Considerations for the operator in complying with CMOH Order 14-2020:

1. Communication of the individual facilities “designated visitor plan” to the residents, their families and staff.
2. The CMOH Order 14-2020 specific requires that the operator must be aware of and follow any applicable privacy legislation, including the Freedom of Information and Protection of Privacy Act, Health Information Act, Personal Information Protection Act, and should document and retain the Health Assessment Screening completed for all residents, visitors, and staff. The operator need to ensure that they have take measure to comply with such Acts.
3. To ensure appropriate physical distancing requirements are being followed it may be useful to identify and mark the designated outdoor area that the resident and visitors may use for their visit and provide guidelines for outdoor visits.
4. Operators to have a policy of dealing with disagreement so the facility is consistent on its approach of when to discuss the situation with Alberta Health Services Patient Relations.
5. Confirmation that hand hygiene (including hand washing and/or use of hand sanitizer) on entry and exit from room, when leaving and returning to the facility and as directed.
6. The operators needs to provide clear instructions on how to put on and take off a mask and any other personal protective equipment and hand hygiene.
7. Operator must ensure appropriate staffing needs are met to ensure that the designated essential visitor is escorted by a site staff to the resident room and remains in the resident room for the duration of the visit as such, the operator needs to ensure adequate number of staff to be present to allow for such visits.

Reporting/Staffing/Operational:

MO 625/2020 (Health), issued on April 17, 2020, amends section 53(2) of the PHA as the Minister of Health is satisfied that it is necessary in order to give effect to CMOH Order 10-2020, issued on April 10, 2020, later amended by CMOH Order 12-2020, issued April 28, 2020, and by CMOH Order 23-2020, issued May 25, 2020 (details below).  These orders define operator, contractor, resident, student, designated essential visitor, health care facility, and staff member as well as require the operator of a health care facility to provide certain information to the Chief Medical Officer including each staff member’s social insurance number, contact information, number of hours worked, and the staff member’s category or classification. [7]

Considerations for the operator in complying with MO 625/2020:

1. The Operator must be aware of and follow any applicable privacy legislation, including the Freedom of Information and Protection of Privacy Act, Health Information Act, Personal Information Protection Act.

Operation and Outbreak Standards

CMOH Order 23-2020 issued on May 25, 2020 provides for all operators of a health care facility to:

1. comply with the operational and outbreak standards attached as Appendix A to the order and;
2. use the applicable COVID-19 questionnaires for licensed supportive living and long term care, attached as Appendix B, in accordance with the operational and outbreak standards. 

The operational expectations set requirements for all operators, residents, staff, as well as any designated essential visitors.

In summary, Appendix A to CMOH Order 23-2020 establishes rules and requirements for responding to a suspected, probable or confirmed outbreak of COVID-19[8] affecting staff and/or residents, the use of standardized health assessment questionnaires and measurement against standardized symptoms.  In addition, the Order 23-2020 specifically provides the expectations for on-site and off-site access to health professionals, and expectations of staff and operator disclosure, and provides for routine practices and additional precautions for staff providing direct resident care or working in resident care areas and provides sequence of steps required when putting on PPE[9]. Order 23-2020 also has additional precautions that need to be taken for the existing processes for admissions and the move between settings. For example, all new admissions to the facility must be placed on contact/droplet precautions for 14 days from arrival to the facility.  In the event of a confirmed COVID-19 outbreak, the operator is expected to stop admissions into the facility.  There are specific measures that need to be taken should a resident wish to temporarily relocate. In addition to the various additional health care, accommodation, visitation and employment standards outlined above, the Operator is also expected to continue to work with residents and families to find innovative, accessible and feasible solutions to tackle any negative consequences, such as inactivity (physical and cognitive) and social isolation and loneliness. Appendix A additionally sets out guidance for operators to support staff wellness throughout the increased workload and stress of the pandemic.

Appendix B of CMOH Order 23-2020 provides the questionnaires for resident, staff, and visitor screening[10].

Considerations for the operator in complying with this Order:

1. How will the operator ensure that every staff member is aware of the operational expectation of staff to follow routine practices and take additional precautions when providing direct resident care?
2. The process (protocol update and training) to be followed when staff return to work from isolation.
3. What will be the process to ensure regular, timely, open and consistent communication to all stakeholders including AHS, staff, residents and their families?
4. How will the operators manage their current policies to ensure that the temporary additional requirements for a newly admitted resident into the facility are being adhered to?
5. Those residents that wish to temporarily relocate, what steps are being taken by the operator to ensure their wellbeing upon their departure and return?
6. Appendix B of CMOH Order 23-2020 specific requires that the operator must be aware of and follow any applicable privacy legislation, including the Freedom of Information and Protection of Privacy Act, Health Information Act, Personal Information Protection Act, and should document and retain the Health Assessment Screening completed for all residents, visitors, and staff. The operator need to ensure that they have taken measure to comply with such Acts.

The following protocols and measures have been provided by AHS:

• Guidelines for COVID-19 Outbreak Prevention, Control and Management in Congregate Living Sites
• Guidelines for Outbreak Prevention, Control and Management in Supportive Living and Home Living Sites
• Guidelines for Outbreak Prevention, Control and Management in Acute Care and Facility Living Sites

Recommendations:

In order to demonstrate a continued commitment to safe residential seniors’ housing and work environments operators are expected to adhere to increased degrees of surveillance by the Province but, also the public. Operators should make an effort to document all of the steps they have taken in response to the dealing with the regulatory changes during the period that the Province declared a state of public health emergency. This will ameliorate the administrative burden on the operator if and when further and more permanent regulatory changes are issued, or if documentation of operator action is needed to be adduced to prove the operator met regulatory requirements.   The Dentons team is available to assist current operators navigate the regulatory changes to ensure a smooth transition during as well as after the COVID-19 pandemic.

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[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 Alberta Health Services 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] The site contact (director of care, case manager, facility administrator) is expected to be reasonable and use their best judgement in making determinations about residents who are dying.

[7] Subsection 53 (2.3) under the PHA.

[8] A site with no residents or staff showing symptoms is in “outbreak prevention” mode; a site with one or more individuals showing signed 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.

[9] 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.

[10] The order requires that the operator must be aware of and follow any applicable privacy legislation, including the Freedom of Information and Protection of Privacy Act, Health Information Act, Personal Information Protection Act, and should document and retain the Health Assessment Screening completed for all residents, visitors, and staff. The operator need to ensure that they have take measure to comply with such Acts.

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