Mandatory Testing of Independent Living Residents and Staff

Residents of the elderly housing component of a continuing care retirement community (“CCRC”) most likely would be considered as having a much greater risk of severe illness and/or death from COVID-19 due to their age and possible underlying health conditions than residents of housing accommodations that are not limited to the elderly.  As a licensed provider, CCRCs have a duty to exercise reasonable care to protect the health, safety and welfare of its residents.  Most likely, it would be concluded that a CCRC provider should be aware and have knowledge of these potential greater risks.  Conducting baseline/universal testing of all independent living (“IL”) residents and staff that service IL residents is a known method to identify and contain the virus, which should help to prevent COVID from penetrating the housing component of a CCRC or alternatively facilitate a CCRC’s ability to contain and eliminate it if found.  Unlike the nursing facility component of a CCRC, currently there is no mandate to test IL residents and staff that service such residents.  In the absence of a mandate, and from a risk management perspective, CCRCs will need to determine what is the appropriate standard of reasonable care to apply to their housing component given the population and potential consequences.

At this point in time, it appears that CCRCs have three options regarding baseline/universal testing:  (1) implement testing now if a CCRC has sufficient resources; (2) wait for a triggering event to conduct testing (i.e., confirmed case of COVID-19 within the housing component); or (3) choose not to conduct baseline/universal testing.  Should a CCRC provider decide to conduct baseline testing, it is important to note that such testing has its limitations as it only captures a snapshot in time.  It must be supplemented by subsequent risk management procedures in an effort to keep a CCRC’s housing component COVID-free.  Alternatively, if a CCRC provider makes a determination not to conduct baseline testing because the CCRC already has other risk management policies and procedures in place, we recommend documenting this decision in the event of a subsequent COVID-19 outbreak in the housing component of the CCRC.  

If you would like to discuss the development of a COVID testing policy and protocol for your IL residents and staff, or any issues surrounding such testing, please do not hesitate to contact us at (717) 620-2424 or via email.