No Longer an Option for Assisted Living Facilities: States Mandate COVID-19 Testing of ALF Residents and Staff

Many states initially focused Coronavirus Disease 2019 (COVID-19) testing efforts on skilled nursing facilities. States are now expanding mandatory testing requirements to include assisted living facilities (ALFs) as testing capacity has increased. This trend follows the White House recommendation that all states test nursing home residents and staff members for COVID-19 over the next two weeks; ALFs are now following suit.

State COVID-19 testing policies span from mandatory testing of all ALF residents and staff to testing only certain high-risk facilities. This article provides examples of certain state mandated COVID-19 testing requirements and is not an exhaustive list of states that are currently requiring testing of ALFs.

• West Virginia was one of the first states to announce a broad statewide testing policy of all residents and staff. Under the Executive Order, the West Virginia Department of Health and Human Resources with the assistance of the West Virginia National Guard should “immediately” test all residents and staff at ALFs and residential care communities throughout the state.
• By contrast, New York is focusing on testing staff. The New York Executive Order implemented mandatory testing for all assisted living residence personnel twice each week. Facilities that do not comply face possible monetary penalties for non-compliance of $2,000 per violation per day or suspension or revocation of their operating certificate. Any personnel who refuse to be tested for COVID-19 will be considered to have outdated or incomplete health assessments and are prohibited from working until testing is performed.
• Florida also issued an Emergency Rule, which required ALFs to grant access to the Florida Department of Health or an authorized agent to perform mandated testing of all facility staff, including off-duty staff. While the Rule primarily focuses on testing staff, facilities that do not comply will the Department of Health’s directives regarding staff and resident testing face possible license revocation, license suspension, and/or the imposition of administrative fines.
• Maryland has taken a different approach by implementing “strike teams,” which target certain high-risk ALFs for universal testing of all residents and staff. Facilities receive advanced notice but, once selected, may not decline testing of testing and staff.

New Hampshire, New Jersey, Tennessee, Texas, and Utah are amongst other states that have implemented a form of required testing.  We anticipate the trend towards mandatory testing at ALFs will continue such that residents and staff are regularly tested as testing capacity increases.  However, even in those states that do not impose mandatory testing at this time, many continue to prioritize testing of ALF residents and staff. The Centers for Disease Control and Prevention (CDC) continues to recommend prioritizing health facility workers and patients in long-term care facilities for COVID-19 testing.

For additional information on mandatory COVID-19 testing requirements for ALFs, please contact Hedy S. Rubinger or Charmaine A. Mech.