As the COVID-19 pandemic continues, many states now are requiring mandatory testing of residents and employees of skilled nursing and assisted living facilities, including West Virginia, South Carolina, and Florida. Other states, such as Pennsylvania, are proposing legislation requiring mandatory testing. President Trump also has indicated that the federal government may require mandatory testing of all nursing home residents and employees nationwide. However, while widespread testing is welcome in order to protect this vulnerable population, it does create potential liability in relation to the protection of your facility's residents and employees' protected health information.

Are your employees already completing health screening forms? Are your visitors completing screening forms? Liability lurks if you do not understand these forms contain protected health information, and you do not have the right policy in placing for storing the forms.

The playing field in relation to COVID-19 is dynamic and ever changing, but amidst these changes your facility must remain cognizant of its duties to protect your residents' and employees' protected health information pursuant to HIPAA and the ADA. This is especially true when the demand for information comes from entities that may not be familiar with the limitations HIPAA and the ADA place on the disclosure of protected health information. This was the case recently in Illinois when a state court judge ordered the local health department to publicly disclose the names of those who had been diagnosed with COVID-19. Moreover, with all the changes to reporting requirements, there is an even greater chance of a misunderstanding by a government agency regarding what information your facility must report regarding the status of COVID-19 infections in your facility. Even though HHS has relaxed enforcement of specific aspects of the HIPAA Privacy Rule, blind adherence to demands from government entities for COVID-19 health information without first consulting with counsel may leave you vulnerable to future government action or lawsuits in the event of the disclosure of protected health information.

In order to avoid an improper disclosure of protected health information, your facility must have a plan in place now that provides for the proper handling of governmental demands for COVID-19 related health information. Best practice is to continue to have strict controls in place to protect your facility's residents' and employees' protected health information from improper disclosure both inside and outside your facility. This plan should include a process to vet requests for COVID-19 related health information from government agencies with counsel. The plan must also include processes for preventing the dissemination of protected health information inside your facility to unauthorized personnel and other residents. Having strict controls on communicating COVID-19 related health information in place now will decrease your facility's liability to future government action and potential lawsuits.

If your facility needs assistance in formulating a COVID-19 testing plan, or responding to government requests for COVID-19 related health information, please reach out to Spilman's Nursing Home Practice Group.