9/8/2020 12:12 PM Velva L. Price District Clerk Travis County D-1-GN-20-004719 CAUSE NO. ______D-1-GN-20-004719 MARCY RENNEBERG, ALINE RENNEBERG, § IN THE DISTRICT COURTRuben Tamez WANDA WEBB, LELAND WEBB, § Plaintiffs, § § v. § § 53RD___ JUDICIAL DISTRICT GREG ABBOTT;TEXAS HEALTH AND HUMAN § SERVICES COMM’N; CECILE YOUNG, Exec. § Comm’r, Texas Health and Human Services Comm’n; § STATE OF TEXAS, PINE ARBOR NURSING HOME, § and PARK VALLEY INN, SAN GABRIEL § REHABILITATION AND CARE CENTER § Defendants. § TRAVIS COUNTY TEXAS
PLAINTIFFS’ ORIGINAL PETITION and APPLICATION FOR EQUITABLE RELIEF
Plaintiffs are MARCY RENNEBERG and her mother ALINE RENNEBERG, married
couple WANDA WEBB and LELAND WEBB, two pairs of individuals separated by policies
implemented by nursing homes at the demand of Governor Greg Abbott and state agents. These
plaintiffs come now to file this Original Petition and Application for Equitable Relief, including
a temporary restraining order against the defendants, including the State of Texas, Gov. Abbott,
THHS, Pine Arbor Nursing Home, and San Gabriel Rehabilitation and Care Center (“Defendant
Nursing Homes”) executing these one-dimensional and harmful policies.
Defendants are violating constitutional and statutory rights of Plaintiffs by prohibiting
essential family visitors, damaging the health of residents in these facilities, and costing precious
time to the residents and their families. The Defendant Nursing Homes are breaching contracts
with Plaintiffs by disallowing residents to visit with loved ones even when they have medical
power of attorney for residents, resulting in elder abuse and violating the Americans with
Disabilities Act by failing to provide equal access to medical care to their residents. This Court
should order Defendants to allow residents to receive visits by essential family caregivers under
the same conditions that apply to employees and staff.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 1
I. DISCOVERY CONTROL PLAN
1. Plaintiffs intend to conduct discovery under Level 3 of the rules set forth in Rule 190 of
the Texas Rules of Civil Procedure.
II. REQUEST FOR DISCLOSURE
2. Plaintiffs request Defendants provide disclosures in accordance with Texas Rule of Civil
Procedure 194, including relevant documents.
III. TRCP 47 STATEMENT
3. Plaintiffs are suing for injunctive relief and declaratory relief.
4. Plaintiffs are seeking monetary relief of $100,000 or less and non-monetary relief.
IV. PARTIES AND SERVICE
5. Plaintiff Marcy Renneberg and Maria Renneberg are Texas residents and may be served
through their attorney of record, the undersigned.
6. Plaintiffs Wanda Webb and Leland Webb are Texas residents and may be served through
their attorney of record, the undersigned.
7. Defendant Greg Abbott is the governor of the State of Texas and is being sued in his
official capacity only. He may be served at 1100 San Jacinto Boulevard, Austin, Texas 78701.
8. Defendant Cecile Young is the Executive Director of the Texas Health and Human
Services Commission (“HHSC”) and is being sued in her official capacity as the Executive
Director of the Texas Health and Human Services Commission. She may be served with process
at 4900 N. Lamar Blvd. Austin, Texas 78751 or wherever she may be found.
9. Defendant State of Texas can be served at the Office of the Attorney General, 300 W.
15th Street, Austin, TX 78701.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 2
10. Defendant Pine Arbor is owned by Oakbend Medical Center and is a skilled nursing care
facility located in Silsbee, Texas. It may be served through its Administrator Wendy K Jeselink
at 705 Highway 418 West Silsbee, TX 77656.
11. Defendant San Gabriel Rehabilitation and Care Center South is owned by Limestone
Hospital District and is a skilled nursing care facility located in Round Rock, Texas. It may be
served through Administrator Leah Gage at 4100 College Park Drive Round Rock, TX 78665.
V. JURISDICTION AND VENUE
12. Plaintiffs seek relief that can be granted by courts of law or equity.
13. The Court has jurisdiction over the Plaintiffs’ request for declaratory relief against
Defendants because the Declaratory Judgment Act waives governmental immunity when the
plaintiff is challenging the validity of an ordinance, order, or government action. See Tex. Civ.
Prac. & Rem. Code §§ 37.004, 37.006; Texas Lottery Comm’n v. First State Bank of DeQueen,
325 S.W.3d 628 (2010); Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994).
14. The Court has jurisdiction over the Plaintiffs’ request for injunctive relief against
Defendants Abbott and Young because they are acting ultra vires by keeping Plaintiffs from in-
person visits with each other in violation of Texas law and the Texas Constitution. See City of El
Paso v. Heinrich, 284 S.W.3d 366-368-69 (Tex. 2009).
15. Plaintiffs have standing to seek declaratory and injunctive relief because they have been
damaged by the Defendants’ conduct.
16. The Court has personal jurisdiction over the Defendants.
17. Venue is proper in Travis County because Defendants have their principal office in
Travis County, Texas. See Tex. Civ. Prac. & Rem. Code § 15.002(a)(3).
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 3
18. Based on past experience as described in the 5th Circuit Court’s ruling in In re Abbott,
956 F.3d 696 (5th Cir. 2020), Plaintiffs expect Defendant Abbott to assert that his proclamations
and orders are not the same as enforcing non-laws and thus he should be permitted to dodge
responsibility for the wanton economic destruction he is causing. To be sure, the Fifth Circuit
recognized in In re Abbott that under section 418.012 of the Texas Government Code, the Texas
Governor “may issue executive orders, proclamations, and regulations and amend or rescind
them,” but then concluded that the Governor does not have the power to enforce such orders and
thus is not subject to suit under the Eleventh Amendment. Id. at 708-710.
19. Plaintiffs acknowledge the Fifth Circuit’s ruling and recognize that Abbott did not
physically appear at Plaintiffs’ businesses on a white steed and armed with a Colt .45 to ensure
compliance with his executive orders. However, this is not a federal suit, and this Texas court
should evaluate a request to enjoin enforcement of an unconstitutional rule pretending to be a
law differently than a federal court applies to claims of immunity.
20. The Fifth Circuit’s evaluation warrants examination if only to distinguish between every
case it cites and this suit. In In re Abbott, the Fifth Circuit granted mandamus to release Gov.
Abbott and the Attorney General because they were only creating and threatening enforcement
of executive orders, but not harming abortion providers by closing them down, therefore missing
the “enforcement connection” element necessary for a court to order mandamus. 956 F.3d at
709-710 (discussing Ex parte Young and injunctions against state officials). In this case,
Governor Abbott’s executive order directly states that “People shall not visit nursing homes…”
and this Procrustean unlegislated “law” is causing irreparable damage to plaintiffs.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 4
RELEVANT AUTHORITIES
21. Article I, § 28 of the Texas Constitution states, “No power of suspending laws in this
State shall be exercised except by the Legislature.”
22. Article I, § 19 of the Texas Constitution states, ““No citizen of this State shall be
deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised,
except by the due course of the law of the land.”
23. Article I, § 27 of the Texas Constitution states, “The citizens shall have the right, in a
peaceable manner, to assemble together for their common good.”
24. Article XI, § 5 of the Texas Constitution provides that “no charter or any ordinance
passed under said charter shall contain any provision inconsistent with the Constitution of the
State, or of the general laws enacted by the Legislature of this State.
Texas Human Resources Code, § 102.003(g) states:
An elderly individual is entitled to privacy while attending to personal needs and a private place for receiving visitors or associating with other individuals unless providing privacy would infringe on the rights of other individuals. This right applies to medical treatment, written communications, telephone conversations, meeting with family, and access to resident councils.
25. 42 U.S.C. § 12132 (Americans with Disabilities Act, Title II)
Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
26. 42 U.S.C. § 12182(b)(1)(A.)(i.) (Americans with Disabilities Act, Title III)
Denial of participation: It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 5
VI. FACTS
A. The Disaster Act of 1975 & Executive Orders from Governor Abbott 27. On May 22, 1975 Governor Dolph Briscoe signed H.B. 2032 into law and the Texas
Disaster Act of 1975 (“Disaster Act”) was born.1 Since its 1987 re-codification, the Disaster Act
has been found in Chapter 418 of the Texas Government Code.2
28. The Disaster Act was amended in 2005 following a year of heavy hurricane and flood
damage. The amendment’s intention was to allow county judges and mayors to order evacuations
and “control the movement of persons and the occupancy of premises” in damaged areas.3
29. The Disaster Act gives the Texas Governor broad powers in the case of an emergency,
purporting to give his pronouncements the force of law at § 418.012, and giving him the ability
to suspend laws if, based on his own judgment, they “prevent, hinder, or delay necessary action
in coping with a disaster” at § 418.016.
30. The Disaster Act has rarely been invoked, and thus its deficiencies have not been obvious
until about March 20204, when the COVID-19 virus caused widespread alarm and executives all
over Texas began issuing orders created by no legislative process.
31. Section 418.016 of the Act purports to give Gov. Abbott the power to suspend statutes
that hinder efforts to cope with a disaster; Gov. Abbott has vigorously exercised that alleged
power, though no central listing of such suspensions is available to government watchdogs.
1 Act of May 22, 1975, 64th R.S., H.B. 2032 (1975). 2 Act of May 21, 1987, 70th R.S., S.B. 894 (1987); Tex. Gov’t Code § 418.001 (“This chapter may be cited as the Texas Disaster Act of 1975”). 3 Act of June 9, 2005, 79th R.S., H.B. 3111 (2005), adding Tex. Gov’t Code § 418.108(f)-(g). 4 All dates in this document occur in 2020 unless otherwise specified; all internet URLs last checked August 12, 2020 or later. Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 6
B. The Governor’s Executive Orders separate families during their last days together. i. MARCY RENNEBERG and her mother, ALINE RENNEBERG
32. Aline Renneberg has been a resident of San Gabriel Rehabilitation and Care Center in
Round Rock, Texas since September 2019. Aline Renneberg entered the nursing facility with her
husband, who died in July 2020 from COVID-19. Aline has been left to grieve the loss of her
husband alone, without the support or comfort of family. (See Exhibit C.)
33. Aline Renneberg suffers from dementia and also has diabetes. She is growing more and
more incoherent, confused, and aggressive daily. She no longer cares to eat. She has begun
hallucinating. She has lost weight.
34. Marcy Renneberg, Aline’s daughter and decision maker based on a medical power of
attorney, has been denied the right to enter San Gabriel Rehabilitation and Care Center to visit,
care for, observe, and provide comfort and companionship to her mother.
35. Before Governor Abbott’s orders and the rules and regulations promulgated by HHSC
and enforced by San Gabriel Rehabilitation and Care Center, Marcy would visit her mother
almost daily and care for her. She would check her skin for infections, cut and comb her hair, cut
and clean her fingernails and toenails, make appointments to see the podiatrist, bring her food
and make sure it was mashed so that Aline could eat it, put lotion on Aline’s skin, give her water
to keep her from being dehydrated. Marcy doubts the staff at San Gabriel Rehabilitation and
Care Center is able or willing to provide that level of care. Nor can she check on her mother to
be certain of the care she is receiving.
36. Aline Renneberg cannot carry on a window or phone visit well because of her dementia.
Even if she could, it is no substitute for the in-person visit, care, companionship, and observation
she is entitled to by her daughter as a resident of San Gabriel Rehabilitation and Care Center.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 7
i. WANDA WEBB and her husband, LELAND WEBB
37. Leland Webb is 85 years old and is a nursing home resident at Pine Arbor in Silsbee,
Texas. He has been married to his wife, Wanda, for 54 years. Leland suffers from dementia,
diabetes, and congestive heart failure. His health conditions require that he receive constant care
which Wanda cannot provide in her home. Leland has resided in Pine Arbor Nursing Facility
since July 2018. He is wheelchair bound. (See Exhibits A and B.)
38. Wanda visited Leland regularly, at least several times per week, prior to Governor
Abbott’s orders. She provided hands-on care to him such as cutting his hair, trimming his nails,
and taking him snacks. She would also play games and listen to music with him. Leland was
very social, leaving his room to visit with other residents in the hallways and dining halls as
much as possible. Wanda’s help was integral to his care and well-being as well as his personal
comfort. She would check his legs for swelling and help him move to the recliner to elevate his
legs to prevent swelling due to his congestive heart failure.
39. Leland wants to visit in-person with his wife, Wanda. Pine Arbor has denied that. Phone
calls are impossible because of Leland’s hearing issues. Window visits are also challenging,
again because of his hearing difficulties through a closed window. Though the facility provides
video communications whenever staff is available, there have been times when Leland and
Wanda have called requesting services and no one was available to accommodate the request.
Leland and Wanda Webb represent the situation of thousands of nursing home residents and their
family members who are currently separated.
40. Recently, when Wanda was waiting outside to have a window visit with Leland, she saw
a delivery driver arrive, have his temperature taken, then be allowed to enter to deliver supplies
to refill the vending machines inside the facility. (See Declaration of Wanda Webb.)
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 8
Governor Abbott’s Approach
41. On March 19, 2020, Governor Abbott took drastic action in response to coronavirus cases
in Texas. Abandoning the elderly and infirm to survive in long-term care facilities without the
love, personal contact, and supportive care of their family members, Abbott issued Executive
Order GA-8 (GA-8), which closed nursing homes and other long-term care facilities to all
visitors not providing “essential care.”
42. In Texas, nursing homes are regulated by the Texas Department of Health and Human
Services. Pursuant to GA-8 the Department of Health and Human Services (HHS), under
executive director Cecile Young, guidelines to nursing homes provide that all visitors not
providing critical assistance must be prohibited from visiting residents of long-term care
facilities as these are among the most vulnerable of the state’s residents. Recent guidance from
HHS, updated on August 18, 2020, states:
During routine NF operations, visitors including family members, volunteers, consultants, external providers, and contractors regularly enter facilities. Many perform services essential for facility function, or in the case of service providers such as hospice and dialysis staff, they provide services critical to resident care. It is important to note current CMS and state guidance to NFs requires they limit visitors to only those who are providing critical assistance and only if these essential visitors are properly screened.5
43. Defendant Nursing Homes have implemented the HHS guidance to forbid all family
visitors no matter how integral their contact is to the resident’s care, except in “end-of-life” or
“failure to thrive” situations when certain very specific conditions are met.
5 https://hhs.texas.gov/sites/default/files/documents/doing-business-with-hhs/provider- portal/long-term-care/nf/covid-response-nursing-facilities.pdf Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 9
C. Executive Order GA-28 and the recent “reopening” of Texas 44. Governor Abbott’s “Open Texas” plans issued on April 27, 2020 did not include any plan
for opening nursing homes for visits by family members. His current order, GA-28, states:
People shall not visit nursing homes, state supported living centers, assisted living facilities, or long-term care facilities unless as determined through guidance from the Texas Health and Human Services Commission (HHSC). Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow infection control policies and practices set forth by HHSC, including minimizing the movement of staff between facilities whenever possible;6
45. Initially, nursing homes were closed to protect the most vulnerable of the citizens in
Texas, as it is known that older patients who have comorbid conditions are more likely to
contract and develop complications from COVID-19. Protecting the lives and well-being of these
elderly and infirm residents of Texas is a noteworthy and laudable goal. However, COVID-19 is
not the only health concern facing these residents. As noted by psychologist Melanie Webb,
Leland Webb is already at risk for depressive episodes, which were many times managed with
interaction, human connection, etc. The absolute worst thing that any individual can do when
suffering from depression is isolate themselves from others. Social isolation is certain to
exacerbate depression, which in turn, will exacerbate any general medical conditions. E.g., Aline
Renneberg is growing more confused, incoherent, and even aggressive due to her isolation from
her daughter, Marcy.
6 https://gov.texas.gov/uploads/files/press/EO-GA-28_targeted_response_to_reopening_COVID- 19.pdf Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 10
46. HHS has recently implemented Phase 1 visitation for nursing facilities, which does not
help the Plaintiffs in this lawsuit participate in in-person visits. The Phase 1 visitation guidelines7
allow only the following types of visitation and only if the facility is COVID-19 free among its
residents and no member of staff has tested positive for 14 consecutive days prior to opening.
47. The Phase 1 visitation rules ignore differences in nursing homes, but are unnecessarily
specific to no good purpose. A NF facility with a Phase 1 designation can allow:
• Outdoor visits—A visit between a resident and one or more personal visitors that occurs in-person in a dedicated outdoor space. • Window visits—A personal visit between a visitor and a resident during which the resident and personal visitor are separated by an open window. • Vehicle parades—A visit between a resident and one or more personal visitors, during which the resident remains outdoors on the facility property, and visitors drive past in a vehicle. • Compassionate Care Visits—A visit between one permanently designated visitor and a resident experiencing a failure to thrive.8
48. While this small window of visitation may benefit a few residents, it does not allow
Plaintiffs in this case to have the personal visitation, care, and observation vital to the health and
well-being of their loved ones. Plaintiffs don’t need more outdoor visits without personal contact
and observation, especially in the sweltering Texas summer temperatures, where both patient and
family member could be at risk for complications arising from heat exposure.
49. Though these new rules promulgated by Defendant Young and HHS allow for an
extremely narrow exception designating a visitor for a resident who has been medically declared
as demonstrating “failure to thrive,” those visits may still only take place in facilities which meet
7 https://hhs.texas.gov/sites/default/files/documents/doing-business-with-hhs/provider- portal/long-term-care/nf/covid-response-nursing-facilities.pdf 8https://texreg.sos.state.tx.us/public/regviewer$ext.RegPage?sl=R&app=1&p_dir=&p_rloc=3801 92&p_tloc=&p_ploc=&pg=1&p_reg=380192&ti=40&pt=1&ch=19&rl=2803&issue=08/21/202 0&z_chk=4937918&z_contains=nursing%20facility^^^ Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 11
Phase I requirements. And if a single resident or employee tests positive for COVID-19, all
visitation, no matter how limited, will be denied. In the meantime, staff and employees come and
go freely from facilities that don’t meet Phase 1 requirements.
50. The narrow exception notwithstanding, no nursing home resident should have to reach
the point of “failing to thrive” before that resident is allowed to see his loved ones. Such a
standard ought to be recognized as cruel in a civil society.
51. If Defendants’ conduct is not restrained and declared unconstitutional, once this virus
passes, the rights enjoyed by Plaintiffs under the Texas Constitution will be irreparably damaged.
Indeed, many of these frail residents of nursing homes and other long-term care facilities may
not survive the isolation imposed upon them by the government. Viruses mutate, so there may be
a different coronavirus strain next year. The vulnerable residents of nursing homes cannot be
locked down forever. After over five months, the Governor and the HHSC have only recently
released any plans for allowing essential family visits to these Texas residents. These plans are
very limited and only allow outdoor visits with no physical contact, and do not satisfy the
concerns raised in this petition. Every day that Plaintiffs’ rights are tread upon via unlawful
shutdowns reinforces precedent for future unlawful governmental remedies related to virus and
disease management.
52. There appears to be no end in sight to such executive orders as long as the Governor
maintains a state of disaster, and effectively there can be no oversight of his actions as long as
the Governor refuses to call the Legislature to a special session. As of this filing, Legislators
must wait for the 2021 Legislative session to begin, under the current regime.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 12
53. What is most troubling about GA-28 is that the order does not specify its duration. Most
previous executive orders had a definitive end date or some form of deadline, but this order
leaves closed any hope that nursing homes might someday even open to essential family visits.
54. The Governor has not explained (much less with any rational basis) why staff and
employees can come and go from the nursing homes and other long-term care facilities and
mingle in the community, and yet family members who have a vested interest in protecting their
vulnerable loved ones from disease and in many instances have voluntarily quarantined
themselves may not visit those facilities. Leland Webb has now tested positive for COVID-19,
which must have come into Pine Arbor via a staff member or employee or maybe a vending
machine delivery man, since no family members are able to enter the facility. Clearly, the
policies defined in GA-28 are not preventing viral spread. They are, however, demonstrably
hurting the very people they were intended to safeguard.
55. According to section 102.003(g) of the Texas Human Resources Code, “An elderly
individual is entitled to privacy while attending to personal needs and a private place for
receiving visitors or associating with other individuals unless providing privacy would infringe
on the rights of other individuals. This right applies to medical treatment, written
communications, telephone conversations, meeting with family, and access to resident councils.”
The Governor is impeding this right and is suspending this portion of the law without authority.
56. Further, the Governor of Texas does not have the power to suspend statutes as Article 1,
§ 28 of the Texas Constitution states, “No power of suspending laws in this State shall be
exercised except by the Legislature.” (Emphasis added.)
57. The Texas Disaster Act purports to allow the Governor to suspend regulatory statutes
having to do with the conduct of state businesses, but no language in the Act can be colorably
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 13
claimed to allow the Governor to suspend the rights of disabled and elderly persons to receive
family visitors to provide for their well-being, companionship, and assist in their essential care.
58. The Texas Disaster Act was passed to deal with emergency situations caused by disasters.
It creates the Department of Emergency Management. However, it is a stretch to say that after
over five months, the Governor and Director of Health and Human Services are still operating in
an emergency situation. Certainly, the Governor could have called the Legislature into a special
session by now and passed laws tailored by the HHSC to meet the needs of Leland Webb,
allowing essential family visits under safe conditions. Or the Texas Legislature could hold
hearings and pass a law that requires the Plaintiffs to sacrifice after weighing the costs of such a
decision. Then at least an actual law would be passed by a representative body, rather than by a
single individual claiming powers indistinguishable from that of a medieval king.
59. Other states have opened nursing homes to family visits. For example, Minnesota has
implemented an “essential family caregiver” plan recognizing the vital role these family
members play in the well-being of nursing home residents.9 Minnesota allows family caregivers
to visit residents by using the same precautions expected of employees, including use of personal
protective equipment. Failure to follow strict rules can result in revocation of visitation.
Minnesota recognizes that visitation is an important component of caring for their nursing home
residents. The Minn. Comm’r of Health has stated, “By rolling out this guidance for essential
care providers, we are helping to build a more robust framework that providers can use to ensure
that residents’ full range of needs are met.”10
9 See Minn. Department of Health’s Essential Caregiver Guidance for Long-term Care Facilities; see https://www.health.state.mn.us/diseases/coronavirus/hcp/ltccaregiver.pdf, 10 https://www.health.state.mn.us/news/pressrel/2020/covid071020.html. Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 14
VII. CLAIMS
D. Claim 1 – Declaration – Defendants’ unlegislated suspension of Texas Human Resources Code §102.003(g) unconstitutionally suspends state law. Art. I, § 28.
60. Plaintiffs bring this claim and the following claims for declaratory relief under the
Uniform Declaratory Judgment Act. They also bring suit under City of El Paso v. Heinrich, 284
S.W.3d, 366, 368-369 (Tex. 2009), which authorizes ultra vires claims against public officials
who act in violation of state law.
61. Governor Abbott’s Order attempts to shut down Plaintiff Leland Webb and Aline
Renneberg’s right to receive visitors as recognized by Texas Human Resources Code
§102.003(g) and by preventing Plaintiff’s family members from exercising their medical powers
of attorney and/or guardianship rights to make informed decisions for their loved ones’ care. If
they are unable to see Plaintiff nursing home residents, observe them and the care they are
receiving, and speak to them, Plaintiff family members are inhibited from exercising this right to
make decisions in the patients’ best interest as recognized and required by section 166.152(e) of
the Texas Health and Safety Code.
62. The Governor’s orders are therefore attempts to suspend state law, a power which the
Texas Constitution reserves for the Texas Legislature. Art. I, § 28.
E. Claim 2 – Declaration -- Defendants directly violate the Texas Constitution due process protections and right to freely assemble. Art I, § 19 and § 27.
63. Article I, § 19 states that “[n]o citizen of this State shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disenfranchised, except by the due course of
the law of the land.”
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 15
64. Further, the Texas Constitution Art. 1 §27 provides that: “The citizens shall have the
right, in a peaceable manner, to assemble together for their common good.” This is an inviolate
right of the citizens of Texas recognized by our Texas Constitution.
65. By terminating Plaintiffs’ rights to visit in person, even with reasonable restrictions
similar to those applied to staff of nursing homes, Defendants violate Article I, § 19 and §27 of
the Texas Constitution. Additionally, Plaintiffs have been deprived of the privilege and right to
have in-person visits and contact, a privilege and right recognized by the Texas Legislature at
section 102.003(g) of the Texas Human Resources Code.
66. The Governor and the HHSC have not exercised due process before depriving these
citizens of these rights. The Governor and the HHSC have a duty to provide adequate
opportunity for the Plaintiffs to present their case and defend their rights before removing them.
In similar cases where children are removed from the care of their parents, due process is
required. (See Tex. Fam. Code § 262.101.) In this case, however, the Governor and the HHSC
have promulgated decrees and regulations that are general, broad, and sweeping, but which have
no bearing on the actual condition and medical needs of the individual patient.
67. Section 2001.034 of the Texas Government Code allows the Texas Health and Human
Services Commission to adopt emergency rules “if an agency finds that an imminent peril to the
public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice.”
68. The HHSC relies on this provision for its rules11 which are depriving Plaintiff residents
of the right to receive visitors, resulting in their precipitous decline. Perhaps during the first two
weeks, even up to six weeks at the beginning of this coronavirus pandemic, the “emergency
11 https://texreg.sos.state.tx.us/public/regviewer$ext.RegPage?sl=R&app=1&p_dir=&p_rloc=380 192&p_tloc=&p_ploc=&pg=1&p_reg=380192&ti=40&pt=1&ch=19&rl=2803&issue=08/21/20 20&z_chk=4937918&z_contains=nursing%20facility^^^. Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 16
exception” for rule-making might be considered viable and applicable. However, over five
months have elapsed and the rule-making process, which calls for public comment and input
from the people most affected by the emergency, ought to be followed.
69. Under the normal rule-making procedure as laid out in the Texas Administrative Code,
Title 26, the proposed rules are published in the Texas Register, adequate time for public
comment is allowed, advisory committees meet and review said proposals, and the Executive
Council reviews them before the adoption of the rules.
70. In the case of nursing facilities, the HHSC has not followed the normal rule-making
procedure, even though one can reasonably conclude that our state is not operating under
imminent peril when over five months have elapsed since the declaration of a State of
Emergency. As such, the HHSC is violating the due process rights of the Plaintiffs by failing to
follow the statutorily mandated rule-making process before stripping Plaintiffs of their
constitutionally guaranteed rights to freely assemble with their loved ones and the statutorily
recognized right to receive visitors.
71. The Texas Supreme court has held that:
Wherever the Constitution makes a declaration of political privileges or rights or powers to be exercised by the people or the individual, it is placed beyond legislative control or interference, as much so as if the instrument had expressly declared that the individual citizen should not be deprived of those powers, privileges, and rights; and the Legislature is powerless to deprive him of those powers and privileges. See Bell v. Hill, 174 S.W.2d 113, 120 (1934).
72. If the elected Legislature, the rightful lawmaking body of this State, is powerless to
deprive citizens of the right to assemble, the Governor, Executive Branch, and the HHSC cannot
assert such authority. And even if they could, they cannot claim that an emergency lasts until
death is overcome and the last trumpet blows.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 17
73. Defendants Abbott and Young have, through their actions, restricted individual Plaintiffs’
right to assemble with their loved ones. The right to peaceably assemble for the common good is
considered a fundamental right and thus subject to a strict scrutiny test. To survive this Court’s
review, the government must prove that any limitation of that right is narrowly tailored to serve a
compelling government interest. Because the State has not done so, it violates the
constitutionally guaranteed rights of the plaintiffs. See Zaatari v. City of Austin, No. 03-17-
00812-CV, 2019, Tex. App. LEXIS 10290, (Tex. App. – Austin, 2019).
74. In this case, Plaintiffs have been deprived of the right to assemble together by the
Governor in his decree, by the HHSC in its guidelines, and by Defendant nursing homes, which
are state-Medicaid-funded providers. Defendants must show that they have narrowly tailored
their actions that resulted in this deprivation in order to advance compelling government interest.
75. While Defendants may argue that protecting vulnerable, elderly, and infirm persons
during a global pandemic is a compelling government interest, it cannot legitimately argue that it
narrowly tailored its policy. After five months, there is no longer an emergency situation and
there has been adequate time to tailor a policy to allow essential family visits by Plaintiff family
caregivers to see and care for Plaintiff Nursing Home Residents, Webb and Renneberg.
76. If staff and employees and even vending machine delivery men are allowed to come and
go daily, subject to temperature checks and wearing personal protection equipment, Defendants
must demonstrate how the sweeping prohibition against any in-person visitation is legally
acceptable given that it denies the Plaintiffs the right to assemble. Indeed, the sweeping
prohibition is not acceptable and must be narrowly tailored to pass strict scrutiny.
77. Defendants also violate the Texas Constitution, Art. 1, §28 which provides that, “No
power of suspending laws in this State shall be exercised except by the legislature.” Defendant
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 18
Abbott’s order prohibiting all in-person indoor visits to nursing homes (except those who meet
the requirements of Phase I), combined with the enforcement actions by his agents, is a de facto
suspension of the statutory provisions that protect the rights of nursing home residents to
privately receive visitors. Chapter 418 of the Texas Government Code cannot give the Defendant
authority to ignore the Texas Constitution; as even statutes passed by the Texas Legislature are
subject to the Constitution.
78. The restrictions cannot even pass a rational basis test. COVID-19 cases have clearly
entered nursing facilities through its employees. Defendants may argue that employees are
necessary for the health of nursing home residents, as there is no other option, an obvious truth.
But Defendants have taken the equally absurd position that no family visit as necessary for the
health of nursing home residents, when many nursing homes residents have received near daily
care from their loved ones, and that care has been the difference between life and death.
79. To prohibit all family visits, even by those willing to wear the same personal protective
equipment that the staff wears, based on the contention that the benefits of personal family visits
are not worth the risk of those visits has no rational basis. Nursing home residents often receive
actual health care during those visits. The State of Texas maintains an Ombudsman program
allowing ordinary to people who visit loved ones in nursing homes to identify negligent
treatment of residents during visits.12
80. Because Defendants have failed to provide due process before depriving Plaintiffs of
their rights, this Court should find and declare that the applicable section of GA-28 and relevant
HHSC regulations are void under the Texas Constitution.
12 See https://apps.hhs.texas.gov/news_info/ombudsman/. This Texas program allows any interested adult to be certified as a volunteer watch dog to advocate for nursing home residents. Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 19
F. Claim 3 – Declaration -- Governor Abbott’s Order violates the Equal Protection Clause of the Texas Constitution. Article I, § 3. 81. Governor Abbott’s Executive Order GA-28 picks and chooses winners and losers.
Winners include staff and employees who can enter the nursing home and return home, visit the
grocery store, and attend family gatherings while Plaintiff family caregivers lose by being kept
out and Plaintiff Nursing Home Residents lose by suffering neglect because their family
members cannot provide the essential care and attention they need. Residents of nursing homes
who are able to hear telephone calls, be taken outside or to a window benefit more than other
residents of nursing homes. Leland Webb and Aline Renneberg can do none of these because of
their physical and mental disabilities. This is patently unequal. Unfortunately for Plaintiffs and
others similarly situated, they have been relegated to Governor Abbott’s loser category and
sentenced to isolation and heartbreak. The Governor and HHSC have a duty to promulgate
regulations that provide equal protection to all groups involved – employees of nursing homes,
all residents, and family members.
G. Claim 4 – Declaration -- GA-28 unlawfully suspends laws and is arbitrary. 82. The applicable section of GA-28 unlawfully suspends laws including the rights in the Bill
of Rights, is arbitrary, and violates the Texas Constitution. GA-28 does not pass strict scrutiny
analysis and violates the Texas Constitution, Art. 1, §§ 28 and 29:
Sec. 28. SUSPENSION OF LAWS. No power of suspending laws in this State shall be exercised except by the legislature. Sec. 29. BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted from the general powers of the government, and shall forever remain inviolate, and all laws contrary thereto, or the following provisions, shall be void.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 20
83. Note: neither section 28 nor 29 says “. . .unless the government contends an emergency
might possibly exist.” Indeed, our rights are MOST important during times of emergencies! As
noted in In re Abbott, “The Constitution is not suspended when the government declares a state
of disaster.” In re Abbott, No. 20-0291, 2020 WL 1943226, at *1 (Tex. Apr. 23, 2020).
84. The sections of the Texas Bill of Rights that GA-28 violates by “suspending” laws
include Sections 19 (privileges and due process) and 27 (assembly). Abbott also illegally
suspends the laws guaranteeing the rights of Plaintiffs Webb and Renneberg to receive visitors.
Governor Abbott can claim all day that the legislature gave him “broad powers.” However, those
powers that Abbott claims to have, whatever they may be, cannot supersede the rights guaranteed
by the Texas Constitution.
85. Also, the executive orders by Abbott and enforcement by HHSC and Defendant Nursing
Homes are arbitrary because they have no rational basis. How can it be rational that staff and
employees of nursing homes, and even vending machine delivery men, can come and go from
the nursing facilities subject to temperature checks, screenings, and wearing personal protective
equipment, but loving family members who are motivated not to bring COVID-19 to their fragile
loved ones residing in nursing homes can not be allowed to do so under the same guidelines?
This distinction between employees and essential family caregivers is irrational and arbitrary,
makes no sense, and violates the Texas Constitution.
H. Claim 5 – Declaration -- Governor Abbott and HHSC should follow the Communicable Disease and Control Act. 86. We need not guess what laws the Governor and HHS should be following during this
time. In fact, the Texas Legislature spoke on the issue of communicable diseases such as
COVID-19 in 1989 when it passed Chapter 81 of the Texas Health and Safety Code, known as
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 21
“Communicable Disease Prevention and Control Act.” This Act even addresses the control and
prevention of these diseases in long-term care facilities in §81.014.
87. The Act states clearly that the primary person responsible is the individual. “Each person
shall act responsibly to prevent and control communicable disease.” In doing so, the Texas
Legislature understood that it is not the Governor or HHSC that is primarily responsible for a
particular individual’s health and decisions related thereto, but it is the duty of the individual and
his or her family members.
88. The Act anticipates the need for testing, the right to enter and inspect facilities, and to
implement control measures, like quarantines, to prevent the spread of disease. However,
crucially important is the fact that the Texas Legislature only allowed those control measures to
be in place for up to 60 days. Texas Health & Safety Code §81.082(d) The State is well beyond
150 days at this point. The remedy is not for the Governor and HHSC to continue exercising
authority beyond what is allowed, but to call on the Legislature to extend that authority if they
deem it necessary.
I. Claim 6 – Declaration – Defendants are violating the ADA requirements
89. Governor Abbott through his order, HHSC through its guidelines, and Defendant Nursing
Homes through their practices are violating the Americans with Disabilities Act (ADA) and
Rehabilitation Act of 1973. Both Title II and Title III of the ADA and Section 504 require that
medical care providers provide individuals with disabilities full and equal access to their health
care services and facilities; and reasonable modifications to policies, practices, and procedures
when necessary to make health care services fully available to individuals with disabilities,
unless the modifications would fundamentally alter the nature of the services. They also prohibit
these nursing facilities from discriminating against disabled persons by denying them the
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 22
opportunity “to participate in or benefit from the goods, services, facilities, privileges,
advantages, or accommodations of an entity.”
90. As recipients of Medicaid Services by the state of Texas, residents of commercial nursing
facilities, and as persons who have physical and mental impairments that substantially limit their
major life activities, Leland Webb and Aline Renneberg are entitled to the protections of the
ADA Title II & III. Webb is disabled in having Alzheimer’s disease, which inhibits his decision
making ability. Renneberg has dementia which causes her to become confused and sometimes
renders her unable to even press the help button to call staff in to help her with personal and
medical needs. Webb also has physical impairments requiring the use of a wheelchair and that
limit his movements and ability to function independently. Both plaintiffs have trouble
understanding and effectively communicating via “virtual visits” and phone calls.
91. Webb’s wife, Wanda and Renneberg’s daughter, Marcy, need to be a regular part of their
health care routine and their medical care decision making as their medical powers of attorney
and guardians. They cannot carry out this duty adequately without attending to their loved ones
in person and observing their care and condition. Even the small concessions of “Phase I
Visitation” recently made by Defendant Young and Former Director Wilson are not sufficient to
cure this defect and violation of the ADA and Rehabilitation Act of 1973. Essential family
caregivers are still unable to visit Plaintiffs in the facility where they reside and the provision for
“virtual” visits does not provide equal access to them as to others who are not as severely
disabled both physically and mentally as they are.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 23
J. Claim 7 – Declaration – By their abuse and neglect of Plaintiff Residents, Defendants are violating the Texas Human Resources Code & Centers for Medicare and Medicaid Services Regulations.
92. The Texas Legislature recognized in passing Chapter 48 of the Texas Human Resources
Code that the elderly and disabled deserve special protection from abuse and neglect because
they are vulnerable.
93. The adopted definition of abuse includes “unreasonable confinement” and the definition
of neglect includes “the failure to provide for one’s self the goods or services, including medical
services, which are necessary to avoid physical or emotional harm or pain or the failure of a
caretaker to provide such goods or services.” Texas Human Resources Code §48.002a (2) & (4).
94. Skilled nursing facility employees and staff have a duty to report the abuse and neglect of
their elderly residents, and HHSC has a duty to investigate and remedy those reports. The one-
size-fits none approach that the state has taken with its sweeping orders over the last five months
has left no room for remedying the many cases, including those of Leland Webb and Aline
Renneberg, of abuse and neglect of the elderly in unreasonable confinement and deprivation.
95. The Centers for Medicare and Medicaid Services (CMS), which regulates Defendant
Nursing Homes on the federal level, is governed by regulation §483.10 titled “Resident Rights”
and states “The resident has a right to a dignified existence, self-determination, and
communication with and access to persons and services inside and outside the facility. A facility
must protect and promote the rights of each resident... Visit and be visited by others from outside
the facility.”13 Further, it states that “A facility must promote the exercise of rights for each
resident, including any who face barriers (such as communication problems, hearing problems
13 https://www.cms.gov/Regulations-and- Guidance/Guidance/Transmittals/downloads/R70SOMA.pdf Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 24
and cognition limits) in the exercise of these rights. A resident, even though determined to be
incompetent, should be able to assert these rights based on his or her degree of capability.”
96. Clearly, the federal government recognizes the important right of nursing home residents
to have visits by their loved ones, who are essential to their care and well-being. Defendant
Nursing Homes are violating this fundamental and important right of Plaintiff nursing home
residents who face barriers to using alternate forms of communication and who are essentially
imprisoned in their last days in a nursing facility without the ability to see their loved ones.
97. CMS Regulation 483.13(b) “Abuse: The resident has the right to be free from verbal,
sexual, physical, and mental abuse, corporal punishment, and involuntary seclusion.” It goes on
to explain in the comments that:
“Involuntary seclusion” is defined as separation of a resident from other residents or from her/his room or confinement to her/his room (with or without roommates) against the resident’s will, or the will of the resident’s legal representative. Emergency or short term monitored separation from other Residents will not be considered involuntary seclusion and may be permitted if used for a limited period of time as a therapeutic intervention to reduce agitation until professional staff can develop a plan of care to meet the resident’s needs.
98. Again, the federal government in its regulations recognizes that involuntary seclusion of
nursing home residents is tantamount to abuse. In this case, Defendant Nursing Homes are
involuntarily secluding Plaintiff residents from others, specifically their loved ones, against their
will and the will of their legal representatives. The “emergency” argument cannot be maintained
with any integrity as over 150 days have elapsed since the seclusion orders were put in place, and
the seclusion of Plaintiff residents is resulting in real injury in the form of agitation and decline
in their health and well-being.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 25
K. Claim 8 – Declaration -- Breach of Contract
99. Defendant Nursing Homes have a duty under the contract terms it entered into with
Leland and Wanda Webb and Marcy and Aline Renneberg to abide by the government
regulations which govern them, to provide safe and quality care, and to provide opportunities for
Plaintiff nursing home residents to receive visitors and have access to the care and critical
attention only their family members can provide. Under the Governor’s order (GA-28),
Defendant Nursing Homes are failing. They are often short-handed and by not allowing
Plaintiffs’ loved ones to visit, they are harming, neglecting, and abusing the Plaintiff residents in
their care. Defendant Nursing Homes could have designated Wanda Webb for Leland Webb and
Marcy Renneberg for Aline Renneberg as essential to the residents’ care and allowed them to
enter under GA-28 and following the same guidelines and sanitary conditions as its employees
and staff and even vending machine delivery men. Because they have not done so, they are in
violation of their contract to provide services to the Plaintiff nursing home residents in their care
and their legal representatives.
L. Claim 9 -- Declaration -- San Gabriel and Pine Arbor nursing homes are violating Title 40, Rules §§ 19.401 and 19.402 of the Texas Administrative Code by denying the right to visitors to their residents.
100. Rule § 19.401 of the Texas Administrative Code enumerates the protected rights of
nursing home residents. Specifically, paragraph (c) outlines these rights including the right to
“(16) receive visitors”. (See Exhibit H) Additionally, Rule § 19.402 states, “(b) The resident has
the right to be free of interference, coercion, discrimination, or reprisal from the facility in
exercising the resident's rights.”14
14 https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tlo c=&p_ploc=&pg=1&p_tac=&ti=40&pt=1&ch=19&rl=402 Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 26
101. There is no contradiction with earlier Title 26 Rule § 506.3, which states, “(2) the right of
the patient, in collaboration with his or her physician, to make decisions involving his or her
health care; [...] (12) the right to receive visitors at reasonable hours, within reasonable
limitations, as may be required by the facility in its operation policies.” Three reasons exist
which confirm Title 40’s provisions and the violation in this case. First, Plaintiff residents are
guaranteed the right to have a say in their health care plans. Plaintiff residents and their legal
medical decision makers are willing and desire to forego the so-called “preventative measures”
such as a total isolation from visitors. Second, the right enumerated relates to limiting visits to
certain hours of operation, not whether or not the right may be wholly denied. Finally and most
importantly, the provisions of Title 40, Section 19.402 were amended to take effect in March
2020 while Title 26, Section 506.33 was adopted to be effective in 2004, meaning the later
provision, Title 40, ought to take precedence.
102. Given these facts, the Defendants Pine Arbor and San Gabriel are violating the protected
rights of nursing home residents by denying them their right to receive visitors, which constitutes
“interference” with the exercise of that right. This court should declare that Defendant Nursing
Homes are violating the HHS rules protecting Plaintiff residents’ rights to receive visitors.
M. Claim 11 -- Application for TRO and Injunctive Relief
103. Based on the irreparable harm (and imminent danger of Plaintiffs’ death) caused by
Defendant Abbott’s executive orders, Defendant Young’s rules and regulations, and Defendant
Nursing Homes enforcement of those orders and rules, Plaintiffs seek a temporary restraining
order (“TRO”), temporary injunction, and permanent injunction against Governor Abbott, HHS
Commissioner Cecile Young, and Defendant Nursing Homes prohibiting them from enforcing
GA-28 and all HHS Emergency Rules limiting in-person visitors until such time as the legitimate
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 27
law-making power in this state, the Texas Legislature, can be convened and explorewhat actual
laws should be passed and enforced regarding these matters, and further, to immediately allow
Plaintiffs to resume some semblance of visitation procedures.
104. To obtain a temporary injunction, an applicant must plead and prove: “(1) a cause of
action against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim.” Butnaru v. Fort Motor Car Co., 284 S.W.3d
198, 205 (Tex. 2002).
105. The Uniform Declaratory Judgment Act and City of El Paso v. Heinrich, 284 S.W.3d
366-368-69 (Tex. 2009) each provide Plaintiffs with a cause of action to seek declaratory and
injunctive relief against the Defendants.
106. Plaintiffs have a probable right to relief because the Defendants conduct violates the
Texas Constitution, state statutes, and the Americans with Disabilities Act.
107. Plaintiffs are currently suffering and will continue to suffer probable, imminent, and
irreparable injury absent a temporary restraining order and temporary injunction because the
Defendants are trampling on Plaintiffs’ rights protected by the Texas Constitution and are
exceeding Defendants’ authority under the Texas Disaster Act (Texas Gov’t Code §418.011).
108. Nursing home resident plaintiffs’ lives are at stake, and time is of the essence. Provision
must be made to allow essential family caregivers to enter the facilities and provide personal care
to their loved ones. Nursing homes must be ordered to allow these visits under the same
conditions that they allow their employees and staff to enter and care for the residents.
VIII. ATTORNEY’S FEES
109. Plaintiff seeks recovery of its reasonable and necessary attorney’s fees pursuant to
Chapters37 & 38 et seq of the Texas Civil Practice and Remedies Code.
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 28
110. Plaintiff seeks recovery of its reasonable and necessary attorney’s fees for violations of
the ADA pursuant to 42 USCS § 12133 and 29 USCS §794a. (“In any action or proceeding to
enforce or charge a violation of a provision of this title [29 USCS §§ 790 et seq.], the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s
fee as part of the costs.”)
IX. CONDITIONS PRECEDENT
111. All conditions precedent have occurred.
X. REQUEST FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Plaintiffs respectfully pray for the following relief:
i) declare GA-08 and GA-28 unconstitutional, as well as the referenced associated regulations mentioned herein issued by HHSC to enforce GA-08 and -28;
ii) temporarily restrain the Governor, Executive Director of HHSC, and Defendant Nursing Homes from enforcing the aforementioned broad and unconstitutional orders;
iii) issue a temporary and permanent injunction allowing for safe and limited family visits for essential family caregivers who are willing to follow the same safety and health protocols and staff and employees;
iv) award nominal and compensatory damages;
vi) award costs and attorneys’ fees;
vii) grant all additional relief to which Plaintiffs may be entitled at law or equity, including invalidation of other sections of the Disaster Act as appropriate.
Respectfully submitted this 4th day of September, 2020,
By: /s/Warren V. Norred NORRED LAW, PLLC Warren V. Norred, Texas Bar No. 24045094, [email protected] C. Chad Lampe, Texas Bar No. 24045042, [email protected] 515 E. Border, Arlington, TX 76010 O. (817) 704-3984, F. (817) 524-6686
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 29
Attachments: Exhibit A: Declaration of Wanda Webb Exhibit B: Declaration of Melanie Webb Exhibit C: Declaration of Marcy Renneberg Exhibit D: GA-08 Exhibit E: GA-18 Exhibit F: GA-26 Exhibit G: GA-28 Exhibit H: 40 TAC § 19.402(c) - Statement of Resident Rights Exhibit I: 40 TAC §§ 19.2801-19.2802 - COVID-19 Emergency Rules Exhibit J: Abstract - COVID-19 Response for Nursing Facilities
Renneberg, et al. v. Greg Abbott, et al., Original Petition Page 30
Exhibit A Exhibit A Exhibit A Exhibit A Exhibit A Exhibit B
UNSWORN DECLARATION OF MELANIE F. WEBB
My name is Melanie F. Webb, PsyD. I am over 18 years of age I reside in ____Travis______
County, Texas.
1. I am a clinical psychologist specializing in forensic practice and licensed to practice by the Texas State Board of Examiners of Psychologists. I am a multigenerational native Texan, born and raised in the Beaumont area. I graduated from Lumberton High School in 1987. I am the daughter of Mr. and Mrs. Leland M. Webb and I am writing this declaration to share my experiences as an adult child of a nursing home resident in Texas in 2020. I will also offer my professional perspective on the risks to mental health on the nursing home population and my personal observations on the negative impact that my father being in a nursing home has had on both my parents.
2. My father, Leland Webb, was born and raised in Port Arthur, Texas, where he graduated from Thomas Jefferson High School in 1953. While in high school, he played team sports including football and baseball. After high school, he served in the United States Army where he continued to participate in sports. Later in his adulthood, he would also serve as a weekend warrior for the United States Army National Guard. However, immediately upon completion of his term in the army, my father learned his trade and became an electrician and worked out of his local International Brotherhood of Electrical Workers (IBEW) Local Union 479 until he retired in 1997 at the age of 62.
3. Outside of work and for the duration of his adult life, my father was heavily involved in his church life. In fact, it was at a church party for single adults that my father met my mother in
October 1965, and they started dating. They were married on May 27, 1966 and are still married to this day. The only times that they had been physically separated were on the occasions in Exhibit B
which my father had to travel away from home to work when work assignments out of the Local
479 was slow, but even then, there were times when my mother traveled with him. Nevertheless, my father’s service to his church included teaching classes and leading certain aspects of worship such as prayer, song, and communion, as well as serving the Lumberton Church of Christ as a deacon and then as an elder until he once again had to travel to work. Regardless, no matter whether he was at work, at church, with family, etc. he was always a VERY SOCIABLE
PERSON.
4. Upon his retirement, he became even more involved in the social aspects of his church life, spending much of his time at the church building, hanging out with friends and playing 42, his favorite dominoes game, as well as serving the community by working in the “sharing and caring center”, which was an outreach, church-sponsored program. In addition to time spent with other retirees at the church, my father would often go out into the community, eat at Waffle
House, Burger King, and other establishments where he could hang out, have breakfast or coffee, and visit/socialize with other patrons and employees. During his retirement, he remained a
VERY SOCIABLE PERSON.
5. Unfortunately, my father has struggled with some health problems along the way especially when he reached his 60s. He was diagnosed with Type II Diabetes and struggled some with Hypertension. In 2005, he even experienced a bout of bladder cancer; however, he had surgery to remove the cancer and was able to fully recover. In addition, from the time he was about 25 years old, my father suffered from a psychiatric disorder that resulted in symptoms of depression, which at times became quite severe. Because of advances in the treatment of mental illnesses and the effectiveness of newer generation of medications, the mental illness was always managed well enough so that my father could work, be active in church, and socialize without Exhibit B
significant problems interacting with others. Nevertheless, the symptoms of depression were always and continues to be an ongoing battle as with all who suffer from chronic depressive disorders.
6. In January 2011, when my father was 75 years old, doctors added Alzheimer’s Disease to his list of medical conditions. I will say that, as a psychologist, I questioned the validity of this particular diagnosis because he just did not have many of the classic symptoms and did not experience a steady decline that you would expect to see in an average Alzheimer’s patient; nonetheless, my father did experience a type of cognitive decline and in my opinion, he does suffer from a type of dementia, probably vascular in nature. From 2011 to present, he has demonstrated further deterioration in overall health eventually leading to his inability to perform activities of daily living (ADLs) as well as becoming incontinent. Although he was afforded some home health assistance, his condition declined to the point at which he needed round-the- clock care as looking after him was just physically impossible for my mother to do on her own.
7. As would be expected, discussions occurred around the potential need for nursing home placement. Conversations occurred on this issue between my mother, my sister, and me, as well as a couple of extended family members who offered their input and insight into the matter.
Ultimately, we all agreed that placement in a skilled nursing facility was the best option. The main reason for this was because my mother was not able to physically meet my father’s needs; however, the second-most important reason for placement was that, at home and unable to get out and about in the community as before, my father was socially isolated and spent his days sitting in a recliner, watching television, without outside social contacts and/or activities. We firmly believed that being around so many other people in a nursing and having opportunities to engage in social activities would be a benefit to his overall health. Exhibit B
8. The point came at which time we informed my father of our thoughts and position on nursing home placement for him. As one might expect, his initial reaction was not positive, and he expressed an aversion to the idea. However, being presented with the idea that he would have opportunities to socialize with others and have constant contact with residents, staff members, and visits from outside, he seemed ok with the plan and even agreed that he would enjoy being around others. When it was time for him to move into his new facility, he went without resistance and became a permanent resident of Pine Arbor in Silsbee, Texas. From July 2, 2018, the day that he moved in, until October 1, 2019, my father enjoyed almost daily visits from my mother and occasional visits from other family members and friends. In addition, my mother was able to sign him out from the facility for outings to eat at restaurants, get ice cream, just to ride around in the car, to visit extended family for dinner, and to go to church. In fact, when the weather permitted, he attended church almost every week for approximately two to four months until my mother started to have some health problems and was not feeling well enough to handle him in and out of the car, in the wheelchair, etc.
9. Regardless, my mother continued her regular visits to the nursing home although she had to decrease the frequency to three to four times per week or every other day. In addition, others including children, grandchildren, other extended family members and friends continued occasional visits to the facility. Further, my father was engaged with other residents and staff members in the facility frequently moving around in common areas, interacting with others. He was happy! In early March 2020, nursing home officials began to conduct screenings at the door for visitors, but my mother continued her visits, answering the screening questions, until the facility was ordered to close the doors altogether to outside visits around March 17, 2020. Exhibit B
10. Initially, the “no visits” policy was thought to be temporary; therefore, we were not terribly concerned. After all, we had been told that all the restrictions and changes, closing of businesses, urges to stay at home, requests to wear masks, social distancing, etc., was to last for approximately two weeks in order to “flatten the curve” and “take the pressure off ‘frontline healthcare workers’” However, two weeks turned into a month, which turned into two months, and so on, until now we are currently almost five months into this situation and my mother has not been allowed any access at all to the inside of Pine Arbor. The closest she and others have come to a face-to-face visit has been through a closed window, standing outside in the heat, humidity, rain, grass, mud, mosquitos, or whatever other conditions are created by a Southeast
Texas summer.
11. As one can imagine, these visits do not occur that often or last long as these are not ideal healthy conditions for my mother who is 80 years old and has her own recent history of health concerns. The next best thing is FaceTime conversations, which also have their limits in terms of contact and connection. Regular phone conversations are simply out of the question due to my father being hard of hearing and unable to communicate at all without video. Even more recently, the facility has begun to have some COVID-19 tests of staff members and residents return positive results. In response to this, the facility officials have further restricted residents to their own rooms and have even at times had them wearing face masks. Almost ALL my father’s social interactions and connections to other human beings have been halted.
12. For an individual who thrives on socialization and interactions with others, this is incredibly inappropriate and detrimental to my father’s overall health. He has remained confused as to the reasons for my mother not coming inside to visit as she always did. During some of his window visits and FaceTime conversations, he has become agitated, asking why she is not Exhibit B
coming inside. Although he has been told several times that the facility is not allowed to let her in, he never seems to remember the explanations he has been offered and has asked multiple times. My father is no longer happy. He is already at risk for depressive episodes, which were many times managed with interaction, human connection, etc. The absolute worst thing that any individual can do when suffering from depression is isolate themselves from others. Social isolation is certain to exacerbate depression, which in turn, will exacerbate any general medical conditions. Most recently, my father even refused an opportunity to get out of bed to see my mother through the window. Not only is social interaction extremely important for individuals struggling with depression, cognitive stimulation is also incredibly important for my father due to the dementia. Cognitive stimulation is necessary for anyone suffering from dementia to slow the decline and to enhance the quality of life; therefore, extending the life span and improving the prognosis.
13. As a clinical psychologist, I have worked primarily in forensic settings and in a capacity that involves mental health as it applies to the law; however, from 2008-2010, I had the opportunity to partner with two companies that contracted to provide mental health care to residents in nursing homes. For those two years, I entered nursing facilities daily and worked with residents and their family members providing psychotherapy. As a clinical psychologist, I can tell you that one of the most detrimental aspects of leaving home and entering a nursing facility is the separation from family and the isolation at which it puts residents at risk. I have seen many individuals, even those who do not have a history of depressive disorders, fall victim to depression after entering a facility due to the separation. It is quite common for individuals to decline rapidly and enter into their final days when they are placed in a nursing home from the maladjustment to the change in and of itself. This is especially true if family members do not Exhibit B
stay involved in their loved ones’ care. It is also common for this situation to lead to cognitive decline. Often nursing home residents slip into a depressive state due to lost independence, perceived loss of dignity, loneliness, and lack of cognitive stimulation. This is true for the average individual and especially true for those who enter the facility with a history of depression, cognitive decline, and other mental health conditions.
14. The single most important thing that I would recommend as a clinical psychologist who has worked with the nursing home population is to keep the families involved as much as possible in the residents’ care. The next most important thing would be to make every effort to keep the resident engaged in the social activities offered within the facility. In order to thrive and be as healthy as possible in a nursing home, individuals need connection, physical touch, cognitive stimulation, and family involvement. In order to accomplish this, they need to see unmasked smiling human faces. They need physical contact (e.g. hugging, handholding, eye contact, etc. with loved ones). They need stimulating conversation with others in the same room.
Simply put, they need unlimited and unrestricted human interaction. Yet, despite our understanding of the importance of these things, nursing home residents have been cut off from family members over an extended period of time in a way that has devastating effects.
15. In conclusion, restricting visits of nursing home residents from their families is wrong on many levels. It causes serious harm to the residents’ mental health, which negatively affects their physical health. It is harmful to the residents themselves but is harmful to their family members as well. In a reported effort to protect nursing home residents from one thing, COVID-19, the state has placed them in harm’s way, endangering them with other ill effects resulting from their response to COVID-19. The side effects of these restrictions will inevitably cause more health problems, mental and physical, as well as more death than COVID-19 ever could. Exhibit B
Executed in ___Travis______County, State of Texas on this _7th__ day of August,
2020.
______
MELANIE F. WEBB Exhibit C Exhibit C Exhibit C Exhibit D
GOVERNOR GREG ABBOTT
March 19, 2020
flLED IN THE OFflCE OF THE SECRETARY OF STATE Il”i- O’CLOCK
The Honorable Ruth R. Hughs Secretary of State State Capitol Room 1E.8 Secretary of State Austin, Texas 78701
Dear Secretary Hughs:
Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
Executive Order No. GA-08 relating to COVID- 19 preparedness and mitigation.
The original executive order is attached to this letter of transmittal.
Respectfully submitted, S to the Governor
Attachment
PosT OFFIcE Box 12428 AusTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 foR RELAY SERVICES Exhibit D
xrruthn rbrr
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas March 19, 2020
EXECUTIVE ORDER GAO$
Relating to COVID-19 preparedness and mitigation.
WHEREAS, the novel coronavirus (COVD-19) has been recognized globally as a contagious respiratory virus; and
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying that COVJD-19 poses an imminent threat of disaster for aH counties in the state of Texas; and
WHEREAS, COVID-19 continues to spread and to pose an increasing, imminent threat of disaster throughout Texas; and
WHEREAS, the Centers for Disease Control and Prevention (CDC) has advised that person-to-person contact heightens the risk of COVID-19 transmission; and
WHEREAS, the President’s Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the CDC on March 16, 2020, call upon Americans to slow the spread of COVID-19 by avoiding social gatherings in groups of more than 10 people, using drive-thru, pickup, or delivery options at restaurants and bars, and avoiding visitation at nursing homes, among other steps; and
WHEREAS, the Texas Department of State Health Services has now determined that, as of March 19, 2020, COVID- 19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, under the Texas Disaster Act of 1975, “[t]he governor is responsible
for meeting . . . the dangers to the state and people presented by disasters” (Section 418.001 of the Texas Government Code), and the legislature has given the governor broad authority to fulfill that responsibility.
NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective 11:59 p.m. on March 20, 2020, and continuing until 11:59 p.m. on April 3, 2020, subject to extension thereafter based on the status of COVID-19 in Texas and the recommendations of the CDC:
FILED IN THE OFFICE OF THE SECRETARY OF STATE ii: 9i-’ O’CLOCK MAR 1 9 2020 Exhibit D
Governor Greg Abbott Executive Order GA-08 March 19, 2020 Page 2
Order No. 1 In accordance with the Guidelines from the President and the CDC, every person in Texas shall avoid social gatherings in groups of more than 10 people.
Order No. 2 In accordance with the Guidelines from the President and the CDC, people shall avoid eating or drinking at bars, restaurants, and food courts, or visiting gyms or massage parlors; provided, however, that the use of drive-thru, pickup, or delivery options is allowed and highly encouraged throughout the limited duration of this executive order.
Order No. 3 In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes or retirement or long-term care facilities unless to provide critical assistance.
Order No. 4 In accordance with the Guidelines from the President and the CDC, schools shall temporarily close.
This, executive order does not prohibit people from visiting a variety of places, including grocery stores, gas stations, parks, and banks, so long as the necessary precautions are maintained to reduce the transmission of COVID-19. This executive order does not mandate sheltering in place. All critical infrastructure will remain operational, domestic travel will remain unrestricted, and government entities and businesses will continue providing essential services. For offices and workplaces that remain open, employees should practice good hygiene and, where feasible, work from home in order to achieve optimum isolation from COVD-19. The more that people reduce their public contact, the sooner COVID-19 will be contained and the sooner this executive order will expire.
This executive order supersedes all previous orders on this matter that are in conflict or inconsistent with its terms, and this order shall remain in effect and in full force until 11:59 p.m. on April 3, 2020, subject to being extended, modified, amended, rescinded, or superseded by me or by a succeeding governor.
Given under my hand this the 19th day of March, 2020.
/€ ,- GREG ABBOTT Governor
ATTEST LY.
UTH R. HUGHS Secretary of State FILED IN THE OFFICE OF THE SECRETARY OF STATE 1155M4 O’CLOCK MAR 19 2020 Exhibit E
GOVERNOR GREG ABBOTT
April 27, 2020 FILED IN THE CFflCE OF THE SECRETARY OF STATE t EM O’CLOCK
The Honorable Ruth R. Hughs Secretary of State Secretary of State State Capitol Room 1E.8 Austin, Texas 78701
Dear Secretary Hughs:
Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
Executive Order No. GA-18 relating to the expanded reopening of services as part of the safe, strategic plan to Open Texas in response to the COVID- 19 disaster.
The original executive order is attached to this letter of transmittal.
Respectfully submitted, S ye Clerk to the Governor
GSD/gsd
Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 foR RELAY SERVICES Exhibit E
xrcuthir iIrrr
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas April 27, 2020
EXECUTIVE ORDER GA18
Relating to the expaizded reopening of services as part of the safe, strategic plan to Open Texas in response to the COVID-19 disaster.
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID-19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, on April 12, 2020, I issued a proclamation renewing the disaster declaration for all counties in Texas; and
WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVD- 19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code, and renewed that determination on April 17, 2020; and
WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and
WHEREAS, I issued Executive Order GA-08 on March 19, 2020, mandating certain obligations for Texans in accordance with the President’s Coronavirus Guidelines for America, as promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC) on March 16, 2020, which called upon Americans to take actions to slow the spread of COVID-19 for 15 days; and
WHEREAS, shortly before Executive Order GA-08 expired, I issued Executive Order GA- 14 on March 31, 2020, based on the President’s announcement that the restrictive social-distancing Guidelines should extend through April 30, 2020, in light of advice from Dr. Anthony Fauci and Dr. Deborah Birx, and also based on guidance by DSHS Commissioner Dr. Hellerstedt and Dr. Birx that the spread of COVD-19 can be reduced by minimizing social gatherings; and
WHEREAS, Executive Order GA-14 superseded Executive Order GA-08 and expanded the social-distancing restrictions and other obligations for Texans that are aimed at slowing the spread of COVID- 19, including by limiting social gatherings and in-person contact with people (other than those in the same household) to providing or obtaining “essential services,” and by expressly adopting federal guidance that provides a list of critical-infrastructure sectors, workers, and functions that should continue as “essential services” during the COVID-19 response; and FILED IN THE OFFICE OF THE SECRETARY OF STATE t PNX O’CLOCK APR 2? 2020 Exhibit E
Governor Greg Abbott Executive Order GA-18 April 27, 2020 Page 2
WHEREAS, after more than two weeks of having in effect the heightened restrictions like those required by Executive Order GA-14, which have saved lives, it was clear that the disease still presented a serious threat across Texas that could persist in certain areas, but also that COVID-19 had wrought havoc on many Texas businesses and workers affected by the restrictions that were necessary to protect human life; and
WHEREAS, on April 17, 2020, I therefore issued Executive Order GA-l7, creating the Governor’s Strike Force to Open Texas to study and make recommendations on safely and strategically restarting and revitalizing all aspects of the Lone Star State—work, school, entertainment, and culture; and
WHEREAS, also on April 17, 2020, I issued Executive Order GA-16 to replace Executive Order GA- 14, and while Executive Order GA- 16 generally continued through April 30, 2020, the same social-distancing restrictions and other obligations for Texans according to federal guidelines, it offered a safe, strategic first step to Open Texas, including permitting retail pick-up and delivery services; and
WHEREAS, Executive Order GA-16 is set to expire at 11:59 p.m. on April 30, 2020; and
WHEREAS, Texas must continue to protect lives while restoring livelihoods, both of which can be achieved with the expert advice of medical professionals and business leaders; and
WHEREAS, the “governor is responsible for meeting ... the dangers to the state and people presented by disasters” under Section 418.0 11 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, under Section 418.012, the “governor may issue executive orders hav[ingl the force and effect of law;” and
WHEREAS, under Section 4 18.016(a), the “governor may suspend the provisions of any
regulatory statute prescribing the procedures for conduct of state business ... if strict
compliance with the provisions ... would in any way prevent, hinder, or delay necessary action in coping with a disaster;” and
WHEREAS, under Section 4 18.017(a), the “governor may use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;” and
WHEREAS, under Section 4 18.018(c), the “governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area;” and
WHEREAS, under Section 4 18.173, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable by a fine not to exceed $1,000, confinement in jail for a term not to exceed 180 days, or both fine and confinement.
NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective immediately, and continuing through May 15, 2020, subject to extension based on the status of COVID-19 in Texas and the
FILED IN THE OFFICE OF THE SECRETARy OF STATE iP,v\ O’CLOCK APR 2? 2020 Exhibit E
Governor Greg Abbott Executive Order GA-18 April 27, 2020 Page 3
recommendations of the Governor’s Strike Force to Open Texas, the White House Coronavirus Task Force, and the CDC:
1_n accordance with guidance from DSHS Commissioner Dr. Hellerstedt, and to achieve the goals established by the President to reduce the spread of COVD-19, every person in Texas shall, except where necessary to provide or obtain essential services or reopened services, minimize social gatherings and minimize in-person contact with people who are not in the same household. People over the age of 65, however, are strongly encouraged to stay at home as much as possible; to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days; and, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation.
“Essential services” shall consist of everything listed by the U.S. Department of Homeland Security (DHS) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3.0 or any subsequent version, plus religious services conducted in churches, congregations, and houses of worship. Other essential services may be added to this list with the approval of the Texas Division of Emergency Management (TDEM). TDEM shall maintain an online list of essential services, as specified in this executive order and any approved additions. Requests for additions should be directed to TDEM at [email protected] or by visiting the TDEM website at www.tdem.texas.gov/essentialservices.
“Reopened services” shall consist of the following to the extent they are not already “essential services:” 1. Retail services that may be provided through pickup, delivery by mail, or delivery to the customer’s doorstep. 2. Starting at 12:01 a.m. on Friday, May 1, 2020: a) In-store retail services, for retail establishments that operate at up to 25 percent of the total listed occupancy of the retail establishment. b) Dine-in restaurant services, for restaurants that operate at up to 25 percent of the total listed occupancy of the restaurant; provided, however, that (a) this applies only to restaurants that have less than 51 percent of their gross receipts from the sale of alcoholic beverages and are therefore not required to post the 51 percent sign required by Texas law as determined by the Texas Alcoholic Beverage Commission, and (b) valet services are prohibited except for vehicles with placards or plates for disabled parking. c) Movie theaters that operate at up to 25 percent of the total listed occupancy of any individual theater for any screening. d) Shopping malls that operate at up to 25 percent of the total listed occupancy of the shopping mall; provided, however, that within shopping malls, the food- court dining areas, play areas, and interactive displays and settings must remain closed. e) Museums and libraries that operate at up to 25 percent of the total listed occupancy; provided, however, that (a) local public museums and local public libraries may so operate only if permitted by the local government, and (b) any components of museums or libraries that have interactive functions or exhibits, including child play areas, must remain closed. t) For Texas counties that have filed with DSHS, and are in compliance with, the requisite attestation form promulgated by DSHS regarding five or fewer cases of COVID- 19, those in-store retail services, dine-in restaurant services, movie theaters, shopping malls, and museums and libraries, as otherwise defined and limited above, may operate at up to 50 percent (as opposed to 25 percent) of
FILED IN THE OFFICE OF THE SECRE.TARY OF STATE itIV\ O’CLOCK APR 2? 2020 Exhibit E
Governor Greg Abbott Execittive Order GA-18 April 27, 2020 Page 4
the total listed occupancy. g) Services provided by an individual working alone in an office. h) Golf course operations. i) Local government operations, including county and municipal governmental operations relating to permitting, recordation, and document-filing services, as determined by the local government. j) Such additional services as may be enumerated by future executive orders or proclamations by the governor.
The conditions and limitations set forth above for reopened services shall not apply to essential services. Notwithstanding anything herein to the contrary, the governor may by proclamation identify any county or counties in which reopened services are thereafter prohibited, in the governor’s sole discretion, based on the governor’s determination in consultation with medical professionals that only essential services should be permitted in the county, including based on factors such as an increase in the transmission of COVTD-l 9 or in the amount of COVID- 19-related hospitalizations or fatalities.
In providing or obtaining essential services or reopened services, people and businesses should follow the minimum standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus, and should implement social distancing, work from home if possible, and practice good hygiene, environmental cleanliness, and sanitation. This includes also following, to the extent not inconsistent with the DSHS minimum standards, the Guidelines from the President and the CDC, as well as other CDC recommendations. Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.
Religious services should be conducted in accordance with the joint guidance issued and updated by the attorney general and governor.
People shall avoid visiting bars, gyms, public swimming pools, interactive amusement venues such as bowling alleys and video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons. The use of drive-thru, pickup, or delivery options for food and drinks remains allowed and highly encouraged throughout the limited duration of this executive order.
This executive order does not prohibit people from accessing essential or reopened services or engaging in essential daily activities, such as going to the grocery store or gas station, providing or obtaining other essential or reopened services, visiting parks, hunting or fishing, or engaging in physical activity like jogging, bicycling, or other outdoor sports, so long as the necessary precautions are maintained to reduce the transmission of COVID-19 and to minimize in-person contact with people who are not in the same household.
In accordance with the Guidelines from the President and the CDC, people shall not visit nursing homes, state supported living centers, assisted living facilities, or long-term care facilities unless to provide critical assistance as determined through guidance from the Texas Health and Human Services Commission (HHSC). Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow infection control policies and practices set forth by the HHSC, including minimizing the movement of staff between facilities whenever possible.
In accordance with the Guidelines from the President and the CDC, schools shall remain temporarily closed to in-person classroom attendance by students and shall not
FILED IN THE OFFICE OF THE SECftETARY OF STATE
= I ?M O’CLOCK APR 2? 2020 Exhibit E
Governor Greg Abbott Executive Order GA-18 April 27, 2020 Page 5
recommence before the end of the 2019-2020 school year. Public education teachers and staff are encouraged to continue to work remotely from home if possible, but may return to schools to conduct remote video instruction, as well as perform administrative duties, under the strict terms required by the Texas Education Agency. Private schools and institutions of higher education should establish similar terms to allow teachers and staff to return to schools to conduct remote video instruction and perform administrative duties when it is not possible to do so remotely from home.
This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list of essential services or the list or scope of reopened services as set forth in this executive order. I hereby suspend Sections 418.1015(b) and 418.10$ of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.
This executive order supersedes Executive Order GA-16, but does not supersede Executive Orders GA-b, GA-il, GA-l2, GA-13, GA-15, or GA-17. This executive order shall remain in effect and in full force until 11:59 p.m. on May 15, 2020, unless it is modified, amended, rescinded, or superseded by the governor.
Given under my hand this the 27th day of April, 2020.
GREG ABBOTT Governor
ATTES BY:
FUTH R. HUGHS Secretary of State
FILED IN THE OFF1CE OF THE SECRETARY OF STATE t ‘1V\ O’CLOCK APR 2? 2020 Exhibit F
GOVERNOR GREG ABBOTT
June 3, 2020
FILED N TH CFFCE OF THE SECRETARY OF STATE O’CLOCK
The Honorable Ruth R. Hughs Secretary of State State Capitol Room lE.8 Secretary of State Austin, Texas 78701
Dear Secretary Hughs:
Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
Executive Order No. GA-26 relating to the expanded opening of Texas in response to the COVID-19 disaster.
The original executive order is attached to this letter of transmittal.
Re :tfully submitted,
lerk to the Governor
Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VoIcE) DIAL 7-1-1 FoR RELA’ SERVICES Exhibit F
3xrcufir rbrr
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas June 3, 2020
EXECUTIVE ORDER GA26
Relating to the expanded opening of Texas in response to the COVID-19 disaster.
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.0 14 of the Texas Government Code that the novel coronavirus (COVID- 19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, in each subsequent month effective through today, I have renewed the disaster declaration tbr all Texas counties; and
WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVID-19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and
WHEREAS, I issued Executive Order GA-Os on March 19, 2020, mandating certain social-distancing restrictions for Texans in accordance with guidelines promulgated by President Donald J. Trump and the Centers for Disease Control and Prevention (CDC); and
WHEREAS, I issued Executive Order GA-14 on March 31, 2020, expanding the social- distancing restrictions for Texans based on guidance from health experts and the President; and
WHEREAS, I subsequently issued Executive Orders GA-l6, GA-iS, GA-21, and GA-23 over the course of April and May 2020, aiming to achieve the least restrictive means of combatting the threat to public health by continuing certain social-distancing restrictions, while implementing a safe, strategic plan to Open Texas; and
WHEREAS, as normal business operations resume, everyone must act safely, and to that end, this executive order and prior executive orders provide that all persons should follow the health protocols recommended by DSHS, which whenever achieved wiLl mean compliance with the minimum standards for safely reopening, but which should not be used to fault those who act in good faith but can only substantially comply with the standards in light of scarce resources and other extenuating COVID-l9 circumstances; and
WHEREAS, the “governor is responsible for meeting ... the dangers to the state and people presented by disasters” under Section 418.011 of the Texas Government Code,
FILED IN THE OFFiCE OF THE SECRETARY OF STATE ‘er-’ O’CLOCK JUN 03 2020 Exhibit F
Governor Greg Abbott Executive Order GA-26 June 3, 2020 Page 2
and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, failure to comply with any executive order issued during the COVID- 19 disaster is an offense punishable under Section 418.173 by a fine notto exceed $1,000, and may be subject to regulatory enforcement;
NOW, THEREFORE, 1, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, and in accordance with guidance from DSHS Commissioner Dr. Hellerstedt and other medical advisors, the Governor’s Strike Force to Open Texas, the White House, and the CDC, do hereby order the lollowtng on a statewide basis effective immediately:
Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment; provided, however, that:
I. There is no occupancy limit for the following: a. any services listed by the U.S. Department of Homeland Security’s Cyhersecurity and Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3. 1 or any subsequent version; b. religious services conducted in churches, congregations, and houses of worship; c. local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services, as determined by the local government; d. child-care services; e. youth camps, including but not limited to those defined as such under Chapter 141 of the Texas Health and Safety Code, and including all summer camps and other daytime and overnight camps for youths; and 1. recreational sports programs for youths and adults; 2. Except as provided below by paragraph number 5, this 50 percent occupancy limit does not apply to outdoor areas, events, or establishments, except that the following outdoor areas or outdoor venues shall operate at no more than 50 percent of the normal operating limits as determined by the owner: a. professional, collegiate, or similar sporting events; b. swimming pools; c. water parks; d. museums and libraries; e. zoos, aquariums, natural caverns, and similar facilities; and f. rodeos and equestrian events; 3. This 50 percent occupancy limit does not apply to the following establishments that operate with at least six feet of social distancing between work statiois: a. cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade; h. massage establishments and other facilities where licensed massage therapists or other persons licensed or otherwise authorized to practice under Chapter 455 of the Texas Occupations Code practice their trade; and c. other personal-care and beauty services such as tanning salons, tattoo studios, piercing studios, hair removal services, and hair loss treatment
FILED IN THE OFFICE OF THE SEçRETARY OF STATE O’CLOCK JUN 03 2020 Exhibit F
Governor Greg Abbott Exectttive Order GA-26 June 3, 2020 Page 3
and growth services; 4. Amusement parks and carnivals shall operate at no more than 50 percent of the normal operating limits as determined by the owner, except that in counties with more than 1 ,000 cumulative cases of COVID- 1 9, amusement parks may not begin operating until 12:01 a.m. on June 19, 2020; 5. For any outdoor gathering estimated to be in excess of 500 people, other than those set forth above in paragraph numbers 1, 2, or 4, the countyjudge or mayor, as appropriate, in consultation with the local public health authority, nmy impose additional restrictions; 6. For dine-in services by restaurants that have less than 5 1 percent of their gross receipts from the sale of alcoholic beverages, the occupancy limit shall increase at 12:01 a.m. on June 12, 2020, to permit such restaurants to operate at up to 75 percent of the total listed occupancy of the restaurant; 7. For indoor bars and similar indoor establishments that are not restaurants as defined above and that hold a permit from the Texas Alcoholic Beverage Commission, only those customers who are seated may be served; 8. For any business establishment that is subject to a 50 percent “total listed occupancy” limit or “normal operating limit,” and that is in a county that has filed with DSHS, and is in compliance with, the requisite attestation form promulgated by DSHS regarding minimal cases of COVID-19, the business establishment may operate at up to 75 percent of the total listed occupancy or normal operating limit of the establishment starting 12:01 a.m. on June 12, 2020; 9. For purposes of this executive order, facilities with retractable roofs are considered indoor facilities, whether the roof is opened or closed; and 10. Staff members are not included in determining operating levels, except for manufacturing services and office workers.
Except as provided in this executive order or in the minimum standard health protocols recommended by DSHS, found at www.dshs.texas .gov/coronavirus, people should not he in groups larger than ten and should maintain six feet of social distancing from those not in their group. People over the age of 65 are strongly encouraged to stay at home as much as possible; to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days; and, if leaving the home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation.
In providing or obtaining services, every person (including individuals, businesses, and other legal entities) should use good-faith efforts and available resources to follow the minimum standard health protocols recommended by DSHS. Nothing in this executive order or the DSHS minimum standards precludes requiring a customer to follow additional hygiene measures when obtaining services. Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.
People shall not visit nursing homes, state supported living centers, assisted living facilities, or long-term care facilities unless as determined through guidance from the Texas Health and Human Services Commission (HHSC). Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow infection control policies and practices set forth by HHSC, including minimizing the movement of staff between facilities whenever possible. Notwithstanding anything herein to the contrary, the governor may by proclamation add to the list of establishments or venues that people shall avoid visiting.
FILED IN THE OFFICE OF THE SECRETARY OF STATE CLOCK JUN 032020 Exhibit F
Governor Greg Abbott Executive Order GA-26 June 3, 2020 Page 4
For the remainder of the 20 19-2020 school year, public schools may resume operations for the summer as provided by, and under the minimum standard health protocols found in, guidance issued by the Texas Education Agency (TEA). Private schools and institutions of higher education are encouraged to establish similar standards. Notwithstanding anything herein to the contrary, schools may conduct graduation ceremonies consistent with the minimum standard health protocols found in guidance issued by TEA.
This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list or scope of services as set forth in this executive order. Pursuant to Section 418.0 16(a) of the Texas Government Code, I hereby suspend Sections 418.1015(b) and 418. 108 of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.
All existing state executive orders relating to COVID- 19 are amended to eliminate confinement in jail as an available penalty for violating the executive orders. To the extent any order issued by local officials in response to the COVID-19 disaster would allow confinement in jail as an available penalty for violating a COVID-l9- related order, that order allowing confinement in jail is superseded, and 1 hereby suspend all relevant laws to the extent necessary to ensure that local officials do not confine people in jail for violating any executive order or local order issued in response to the COVID-19 disaster.
This executive order supersedes Executive Order GA-23, but does not supersede Executive Orders GA-b, GA-13, GA-17, GA-19, GA-20, GA-24, or GA-25. This executive order shall remain in effect and in full force unless it is modified, amended, rescinded, or superseded by the governor. This executive order may also be amended by proclamation of the governor.
Given under my hand this the 3rd day of June, 2020.
GREG ABBOTT Governor
ATTEST
RIJTH R. HUGHS Secretary of State
FILED IN THE OFFICE OF THE
JUN 03 2020 Exhibit G
GOVERNOR GREG ABBOTT
FILED IN THE June 26, 20_0 OFFICE OF ThE SECRETARy OF STATE ; 4Si C’C LOCK
The Honorable Ruth R. Hughs Secretary of State State Capitol Room 1E.8 Austin, Texas 78701
Dear Secretary Hughs:
Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
Executive Order No. GA-2$ relating to the targeted response to the COVID-19 disaster as part of the reopening of Texas.
The original executive order is attached to this letter of transmittal.
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Attachment
POST OFFICE Box 12428 AUSTIN, TEXAS 78711 512-463-2000 (VOICE) DIAL 7-1-1 FOR RELAY SERVICES Exhibit G
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BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas June 26, 2020
EXECUTIVE ORDER GA28
Relating to the targeted response to the COVID-19 disaster as part ofthe reopening of Texas.
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVIP- 19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, in each subsequent month effective through today, I have renewed the disaster declaration for all Texas counties; and
WHEREAS, the Commissioner of the Texas Department of State Health Services (DSHS), Dr. John Hellerstedt, has determined that COVID-19 continues to represent a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, I have issued executive orders and suspensions of Texas laws in response to COVIP- 19, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and
WHEREAS, I issued Executive Order GA-08 on March 19, 2020, mandating certain social-distancing restrictions for Texans in accordance with guidelines promulgated by President Donald I. Trump and the Centers for Disease Control and Prevention (CDC); and
WHEREAS, I issued Executive Order GA-14 on March 31, 2020, expanding the social- distancing restrictions for Texans based on guidance from health experts and the President; and
WHEREAS, I subsequently issued Executive Orders GA-16, GA-18, GA-21, GA-23, and GA-26 from April through early June 2020, aiming to achieve the least restrictive means of combatting the threat to public health by continuing certain social-distancing restrictions, while implementing a safe, strategic plan to Open Texas; and
WHEREAS, as Texas reopens in the midst of COVD-19, increased spread is to be expected, and the key to controlling the spread and keeping Texas residents safe is for all Texans to consistently follow good hygiene and social-distancing practices, especially those set forth in the minimum standard health protocols from DSHS; and
WHEREAS, due to recent substantial increases in COVID-19 positive cases, and increases in the COVID-19 positivity rate and hospitalizations resulting from COVID 19, targeted and temporary adjustments to the reopening plan are needed to achieve the FILED IN THE OFFiCE OF THE SECRETARY OF STATE %5Avi.i O’CLOCK JUN 2 6 2020 Exhibit G
Governor Greg Abbott Executive Order GA-28 June 26, 2020 Page 2
least restrictive means for reducing the growing spread of COVID- 1 9 and the resulting imminent threat to public health, and to avoid a need for more extreme measures; and
WHEREAS, everyone must act safely, and to that end, this executive order and prior executive orders provide that all persons should follow the health protocols from DSHS, which whenever achieved will mean compliance with the minimum standards for safely reopening, but which should not be used to fault those who act in good faith but can only substantially comply with the standards in light of scarce resources and other extenuating COVID-19 circumstances; and
WHEREAS, the “governor is responsible for meeting ... the dangers to the state and people presented by disasters” under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, failure to comply with any executive order issued during the COVID-19 disaster is an offense punishable under Section 418. 173 by a fine not to exceed $1,000, and may be subject to regulatory enforcement;
NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, and in accordance with guidance from DSHS Commissioner Dr. Hellerstedt and other medical advisors, the Governor’s Strike Force to Open Texas, the White House, and the CDC, do hereby order the following on a statewide basis effective at noon on June 26, 2020:
Every business establishment in Texas shall operate at no more than 50 percent of the total listed occupancy of the establishment; provided, however, that:
1. There is no occupancy limit for the following: a. any services listed by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) in its Guidance on the Essential Critical Infrastructure Workforce, Version 3.1 or any subsequent version; b. religious services, including those conducted in churches, congregations, and houses of worship; c. local government operations, including county and municipal governmental operations relating to licensing (including marriage licenses), permitting, recordation, and document-filing services, as determined by the local government; d. child-care services; e. youth camps, including but not limited to those defined as such under Chapter 141 of the Texas Health and Safety Code, and including all summer camps and other daytime and overnight camps for youths; and f. recreational sports programs for youths and adults; 2. Except as provided below by paragraph number 5, this 50 percent occupancy limit does not apply to outdoor areas, events, or establishments, except that the following outdoor areas or outdoor venues shall operate at no more than 50 percent of the normal operating limits as determined by the owner: a. professional, collegiate, or similar sporting events; b. swimming pools; c. water parks; d. museums and libraries; e. zoos, aquariums, natural caverns, and similar facilities; and FILED IN THE OFFëE OF THE SECRETARY OF STATE 45pO’CLOCK JUN 2 6 2020 Exhibit G
Governor Greg Abbott Executive Order GA-28 June 26, 2020 Page 3
f. rodeos and equestrian events; 3. This 50 percent occupancy limit does not apply to the following establishments that operate with at least six feet of social distancing between work stations: a. cosmetology salons, hair salons, barber shops, nail salons/shops, and other establishments where licensed cosmetologists or barbers practice their trade; b. massage establishments and other facilities where licensed massage therapists or other persons licensed or otherwise authorized to practice under Chapter 455 of the Texas Occupations Code practice their trade; and c. other personal-care and beauty services such as tanning salons, tattoo studios, piercing studios, hair removal services, and hair loss treatment and growth services; 4. Amusement parks shall operate at no more than 50 percent of the normal operating limits as determined by the owner; 5. For any outdoor gathering in excess of 100 people, other than those set forth above in paragraph numbers 1, 2, or 4, the gathering is prohibited unless the mayor of the city in which the gathering is held, or the county judge in the case of a gathering in an unincorporated area, approves of the gathering, and such approval can be made subject to certain conditions or restrictions not inconsistent with this executive order; 6. For dine-in services by restaurants that have less than 51 percent of their gross receipts from the sale of alcoholic beverages, the occupancy limit shall remain at 75 percent until 12:01 a.m. on June 29, 2020, at which time such restaurants may only operate at up to 50 percent of the total listed occupancy of the restaurant, subject to paragraph number 9 below; 7. People shall not visit bars or similar establishments that hold a permit from the Texas Alcoholic Beverage Commission (TABC) and are not restaurants as defined above in paragraph number 6; provided, however, that the use by such bars or similar establishments of drive-thru, pickup, or delivery options for food and drinks is allowed to the extent authorized by TABC; 8. People shall not use commercial rafting or tubing services, including rental of rafts or tubes and transportation of people for the purpose of rafting or tubing; 9. For any business establishment that is subject to a 50 percent “total listed occupancy” limit or “normal operating limit,” and that is in a county that has filed with DSHS, and is in compliance with, the requisite attestation form promulgated by DSHS regarding minimal cases of COVID-19, the business establishment may operate at up to 75 percent of the total listed occupancy or normal operating limit of the establishment; 10. for purposes of this executive order, facilities with retractable roofs are considered indoor facilities, whether the roof is opened or closed; 11. Staff members are not included in determining operating levels, except for manufacturing services and office workers; 12. Except as provided in this executive order or in the minimum standard health protocols recommended by DSHS, found at www.dshs.texas.gov/coronavirus, people should not be in groups larger than ten and should maintain six feet of social distancing from those not in their group; 13. People over the age of 65 are strongly encouraged to stay at home as much as possible; to maintain appropriate distance from any member of the household who has been out of the residence in the previous 14 days; and, if leaving the FILED IN THE OFFICE OF THE SECRETARY OF STATE
- 945AV O’CLOCK JUN 2 6 2020 Exhibit G
Governor Greg Abbott Executive Order GA-28 June26,2020 Page4
home, to implement social distancing and to practice good hygiene, environmental cleanliness, and sanitation; 14. th providing or obtaining services, every person (including individuals, businesses, and other legal entities) should use good-faith efforts and available resources to follow the minimum standard health protocols recommended by DSHS; 15. Nothing in this executive order or the DSHS minimum standards precludes requiring a customer to follow additional hygiene measures when obtaining services. Individuals are encouraged to wear appropriate face coverings, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering; 16. People shall not visit nursing homes, state supported living centers, assisted living facilities, or long-term care facilities unless as determined through guidance from the Texas Health and Human Services Commission (HHSC). Nursing homes, state supported living centers, assisted living facilities, and long-term care facilities should follow infection control policies and practices set forth by HHSC, including minimizing the movement of staff between facilities whenever possible; and 17. For the remainder of the 2019-2020 school year, public schools may resume operations for the summer as provided by, and under the minimum standard health protocols found in, guidance issued by the Texas Education Agency (TEA). Private schools and institutions of higher education are encouraged to establish similar standards. Notwithstanding anything herein to the contrary, schools may conduct graduation ceremonies consistent with the minimum standard health protocols found in guidance issued by TEA.
Notwithstanding anything herein to the contrary, the governor may by proclamation add to the list of establishments or venues that people shall not visit.
This executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list or scope of services as set forth in this executive order. Pursuant to Section 418.0 16(a) of the Texas Government Code, I hereby suspend Sections 418.1015(b) and 418.10$ of the Texas Government Code, Chapter 81, Subchapter E of the Texas Health and Safety Code, and any other relevant statutes, to the extent necessary to ensure that local officials do not impose restrictions in response to the COVID-19 disaster that are inconsistent with this executive order, provided that local officials may enforce this executive order as well as local restrictions that are consistent with this executive order.
All existing state executive orders relating to COVTD-19 are amended to eliminate confinement in jail as an available penalty for violating the executive orders. To the extent any order issued by local officials in response to the COVID-19 disaster would allow confinement in jail as an available penalty for violating a COVD-l9- related order, that order allowing confinement in jail is superseded, and I hereby suspend all relevant laws to the extent necessary to ensure that local officials do not confine people in jail for violating any executive order or local order issued in response to the COVJD-19 disaster.
This executive order supersedes Executive Order GA-26, but does not supersede Executive Orders GA-b, GA-13, GA-17, GA-19, GA-24, GA-25, or GA-27. This FILED IN THE OFFICE OF TH SECRETARY OF STATE ‘4Si O1CLOCK JUN 2 6 2020 Exhibit G
Governor Greg Abbott Executive Order GA-28 June 26, 2020 Page 5
executive order shall remain in effect and in full force unless it is modified, amended, rescinded, or superseded by the governor. This executive order may also be amended by proclamation of the governor.
Given under my hand this the 26th day of June, 2020.
GREG ABBOTT Governor
ATTES BY:
UTH R. HUGHS Secretary of State
FILED IN THE OFFICE OF ThE SECRETARY OF STATE
- 45AVILO’CLOCK JUN 26 2020 Exhibit H
Figure: 40 TAC §19.401(c)
Statement of Resident Rights
You, the resident, do not give up any rights when you enter a nursing facility. The facility must encourage and assist you to fully exercise your rights. Any violation of these rights is against the law. It is against the law for any nursing facility employee to threaten, coerce, intimidate or retaliate against you for exercising your rights.
If anyone hurts you, threatens to hurt you, neglects your care, takes your property, or violates your dignity, you have the right to file a complaint with the facility administrator or with the Texas Health and Human Services Commission by calling 1-800-458-9858.
You have a right to:
(1) all care necessary for you to have the highest possible level of health;
(2) safe, decent and clean conditions;
(3) be free from abuse, neglect, and exploitation;
(4) be treated with courtesy, consideration, and respect;
(5) be free from discrimination based on age, race, religion, sex, nationality, or disability and to practice your own religious beliefs;
(6) privacy, including privacy during visits and telephone calls;
(7) complain about the facility and to organize or participate in any program that presents residents' concerns to the administrator of the facility;
(8) have facility information about you maintained as confidential;
(9) retain the services of a physician of your choice, at your own expense or through a health care plan, and to have a physician explain to you, in language you understand, your complete medical condition, the recommended treatment, and the expected results of the treatment, including reasonably expected effects, side effects, and risks associated with psychoactive medications;
(10) participate in developing a care plan, to refuse treatment, and to refuse to participate in experimental research;
(11) a written statement or admission agreement describing the services provided by the facility and the related charges;
(12) manage your own finances or to delegate that responsibility to another Exhibit H
person;
(13) access money and property you have deposited with the facility and to an accounting of your money and property that are deposited with the facility and of all financial transactions made with or on behalf of you;
(14) keep and use personal property, secure from theft or loss;
(15) not be relocated within the facility, except in accordance with nursing facility regulations;
(16) receive visitors;
(17) receive unopened mail and to receive assistance in reading or writing correspondence;
(18) participate in activities inside and outside the facility;
(19) wear your own clothes;
(20) discharge yourself from the facility unless a court finds that you lack this capacity;
(21) not be discharged from the facility, except as provided in the nursing facility regulations;
(22) be free from any physical or chemical restraints imposed for the purposes of discipline or convenience and not required to treat your medical symptoms;
(23) receive information about prescribed psychoactive medication from the person who prescribes the medication or that person's designee, to have any psychoactive medications prescribed and administered in a responsible manner, as mandated by the Texas Health and Safety Code, §242.505, and to refuse to consent to the prescription of psychoactive medications; and
(24) place an electronic monitoring device in your room that is owned and operated by you or provided by your guardian or legal representative.
Your rights may be restricted only to the extent necessary to protect you or another person from danger or harm or to protect a right of another resident, particularly those relating to privacy and confidentiality.
9/2/2020 Emergency Rules Title 40 Exhibit I TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER CC. COVID-19 EMERGENCY RULE
40 TAC §19.2801
The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40, Texas Administrative Code, Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification, new Subchapter CC, COVID-19 Emergency Rule, §19.2801, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. As authorized by Government Code §2001.034 the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.
BACKGROUND AND PURPOSE
The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Emergency Rule for Facility Response to COVID-19.
To protect nursing facility residents and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to restrict entry into a nursing facility and require screening of certain persons authorized to enter a nursing facility.
STATUTORY AUTHORITY
The emergency rulemaking is adopted under Government Code §2001.034 and §531.0055 and Health and Safety Code §242.001 and §242.037. Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Health and Safety Code §242.037 authorizes the Executive Commissioner of HHSC to adopt rules to implement Chapter 242 of the Health and Safety Code including making and enforcing minimum standards for quality of care and quality of life of nursing facility residents. Health and Safety Code §242.001 provides that the goal of Chapter 242 is to ensure that nursing facilities deliver the highest possible quality of care.
§19.2801.Emergency Rule for Nursing Facility Response to COVID-19.
(a) Based on state law and federal guidance, HHSC finds COVID-19 to be a health and safety risk and requires a nursing facility to take the following measures. The screening required by this section does not apply to emergency services personnel entering the facility in an emergency situation.
(b) In this section:
https://www.sos.texas.gov/texreg/archive/April172020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE.html#28 1/4 9/2/2020 Emergency Rules Title 40 Exhibit I (1) Providers of essential services include, but are not limited to, contract doctors, contract nurses, hospice workers, and individuals operating under the authority of a local intellectual and developmental disability authority (LIDDA) or a local mental health authority (LMHA) whose services are necessary to ensure resident health and safety.
(2) Persons with legal authority to enter include, but are not limited to, law enforcement officers, representatives of the long-term care ombudsman's office, and government personnel performing their official duties.
(3) Persons providing critical assistance include providers of essential services, persons with legal authority to enter, and family members or friends of residents at the end of life.
(c) A nursing facility must take the temperature of every person upon arrival and must not allow a person with a fever to enter or remain in the nursing facility, except as a resident.
(d) A nursing facility must prohibit visitors, except as provided in subsection (e) of this section.
(e) A nursing facility may allow entry of persons providing critical assistance, unless the nursing facility believes the person may impede the health and safety of residents or the person meets one or more of the following screening criteria:
(1) Fever or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;
(2) Contact in the last 14 days with someone who has a confirmed diagnosis of COVID-19, someone who is under investigation for COVID-19, or someone who is ill with a respiratory illness; or
(3) International travel within the last 14 days to countries with ongoing community transmission. For updated information on affected countries visit: https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel- notices.html.
(f) A nursing facility must not prohibit government personnel performing their official duty from entering the nursing facility, unless the individual meets the above screening criteria.
(g) If this emergency rule is more restrictive than any minimum standard relating to a nursing facility, this emergency rule will prevail so long as this emergency rule is in effect.
(h) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this emergency rule or any minimum standard relating to a nursing facility, the nursing facility must comply with the executive order or other direction.
The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 3, 2020.
TRD-202001348
Karen Ray
Chief Counsel
Department of Aging and Disability Services
Effective date: April 3, 2020
Expiration date: July 31, 2020
https://www.sos.texas.gov/texreg/archive/April172020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE.html#28 2/4 9/2/2020 Emergency Rules Title 40 Exhibit I For further information, please call: (512) 438-3161
CHAPTER 98. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER D. LICENSURE AND PROGRAM REQUIREMENTS
40 TAC §98.65
The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40, Texas Administrative Code, Chapter 98 Day Activity and Health Services Requirements, new §98.65, concerning an emergency rule in response to COVID-19 in order to reduce the risk of transmission of COVID-19. As authorized by Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Government Code §2001.034, may be effective for not longer than 120 days and may be renewed for not longer than 60 days.
BACKGROUND AND PURPOSE
The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Emergency Rule for Day Activity and Health Services Response to COVID-19.
To protect day activity and health services clients and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to restrict entry into a day and health services facility and require screening of certain persons authorized to enter a day and health services facility.
STATUTORY AUTHORITY
The emergency rulemaking is adopted under Government Code §2001.034 and §531.0055 and Human Resources Code §103.004 and §103.005. Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Human Resources Code §103.004, authorizes the Executive Commissioner of HHSC to adopt rules implementing Chapter 103 of the Human Resources Code, concerning Day Activity and Health Services Facilities. Human Resources Code §103.005 authorizes the Executive Commissioner of HHSC to adopt rules governing the standards for safety and sanitation of a licensed day activity and health services facility.
§98.65.Emergency Rule for Day Activity and Health Services Response to COVID-19.
(a) Based on state law and federal guidance, HHSC finds COVID-19 to be a health and safety risk and requires a day activity and health services facility to take the following measures. The screening required by this section does not apply to emergency services personnel entering the facility in an emergency situation.
(b) In this section:
(1) Providers of essential services include, but are not limited to, contract doctors, contract nurses, and home health workers whose services are necessary to ensure client health and safety.
https://www.sos.texas.gov/texreg/archive/April172020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE.html#28 3/4 9/2/2020 Emergency Rules Title 40 Exhibit I (2) Persons with legal authority to enter include, but are not limited to, law enforcement officers and government personnel performing their official duties.
(3) Persons providing critical assistance include providers of essential services and persons with legal authority to enter.
(c) A day activity and health services facility must take the temperature of every person upon arrival and must not allow a person with a fever to enter or remain in the facility.
(d) A day activity and health services facility must prohibit visitors, except as provided in subsection (e) of this section.
(e) A day activity and health services facility may allow entry of persons providing critical assistance, unless the person meets one or more of the following screening criteria:
(1) Fever or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;
(2) Contact in the last 14 days with someone who has a confirmed diagnosis of COVID-19, someone who is under investigation for COVID-19, or someone who is ill with a respiratory illness; or
(3) International travel within the last 14 days to countries with ongoing community transmission. For updated information on affected countries visit: https://www.cdc.gov/coronavirus/2019-ncov/travelers/map-and-travel- notices.html.
(f) A facility must not prohibit government personnel performing their official duty from entering the facility, unless the individual meets the above screening criteria.
(g) If this emergency rule is more restrictive than any minimum standard relating to a day activity and health services facility, this emergency rule will prevail so long as this emergency rule is in effect.
(h) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this emergency rule or any minimum standard relating to a day activity and health services facility, the day activity and health services facility must comply with the executive order or other direction.
The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 3, 2020
TRD-202001347
Karen Ray
Chief Counsel
Department of Aging and Disability Services
Effective date: April 3, 2020
Expiration date: July 31, 2020
For further information, please call: (512) 438-3161
https://www.sos.texas.gov/texreg/archive/April172020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE.html#28 4/4 9/2/2020 Emergency Rules Title 40 Exhibit I TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER CC. COVID-19 EMERGENCY RULE
40 TAC §19.2802
The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40, Texas Administrative Code, Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification, new §19.2802, concerning an emergency rule in response to COVID-19 and requiring nursing facility actions to mitigate and contain COVID-19. As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.
BACKGROUND AND PURPOSE
The purpose of the emergency rulemaking is to support the Governor's March 13, 2020 proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Nursing Facility COVID-19 Response.
To protect nursing facility residents and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to require nursing facility actions to mitigate and contain COVID-19. The purpose of the new rule is to describe these requirements.
STATUTORY AUTHORITY
The emergency rule is adopted under Texas Government Code §§2001.034 and 531.0055, and Texas Health and Safety Code §242.001 and §242.037. Texas Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Texas Government Code §531.0055, authorizes the Executive Commissioner of HHSC to adopt rules governing the operation and provision of health and human services byHHSC. Texas Health and Safety Code §242.037 requires the Executive Commissioner of HHSC to make and enforce rules prescribing minimum standards quality of care and quality of life for nursing facility residents. Texas Health and Safety Code §242.001 states the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility.
The new rule implements Texas Government Code §531.0055 and §531.021 and Texas Human Resources Code §32.021.
§19.2802.Nursing Facility COVID-19 Response.
(a) The following words and terms, when used in this subchapter, have the following meanings.
https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 1/10 9/2/2020 Emergency Rules Title 40 Exhibit I (1) Cohort--A group of residents placed in rooms, halls, or sections of the facility with others who have the same COVID-19 status or the act of grouping residents with other residents who have the same COVID-19 status.
(2) COVID-19 status--The status of a person based on COVID-19 test results, symptoms, or other factors that consider the person's potential for having the virus.
(3) COVID-19 positive--A person who has tested positive for COVID-19 and does not yet meet CDC guidance for the discontinuation of transmission-based precautions.
(4) COVID-19 negative--A person who has tested negative for COVID-19, is not exhibiting symptoms of COVID-19, and has had no known exposure to the virus since the negative test.
(5) Isolation--The separation of people who are COVID-19 positive from those who are COVID-19 negative and those whose COVID-19 status is unknown.
(6) PPE--Personal protective equipment. Specialized clothing or equipment worn by nursing facility staff for protection against transmission of infectious diseases such as COVID-19, including masks, goggles, face shields, gloves, and disposable gowns.
(7) Quarantine--The separation of a person with unknown COVID-19 status from those who are COVID-19 positive and those who are COVID-19 negative.
(8) Unknown COVID-19 status--A person who is a new admission, readmission, has spent one or more nights away from the facility, has had known exposure or close contact with a person who is COVID-19 positive, or who is exhibiting symptoms of COVID-19 while awaiting test results.
(b) A nursing facility must have a COVID-19 response plan that includes:
(1) Cohorting plans that include designated space for COVID-19 negative residents, COVID-19 positive residents, and residents with unknown COVID-19 status.
(2) Spaces for staff to don and doff PPE that minimize the movement of staff through other areas of the facility.
(3) Resident transport protocols.
(4) Plans for obtaining and maintaining a two-week supply of PPE, including surgical facemasks, N95 facemasks, gowns, gloves, and goggles or face shields.
(5) Resident recovery plans for continuing care after a resident recovers from COVID-19.
(c) A nursing facility must screen all residents, staff, and people who come to the facility for the following criteria:
(1) fever defined as a temperature of 100.4 Fahrenheit and above, or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;
(2) signs or symptoms of COVID-19, including chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;
(3) additional signs and symptoms as outlined by the Centers for Disease Control and Prevention (CDC) in Symptoms of Coronavirus at cdc.gov;
(4) contact in the last 14 days, unless to provide critical assistance, with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with a respiratory illness; and
https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 2/10 9/2/2020 Emergency Rules Title 40 Exhibit I (5) international travel, unless to provide critical assistance, within the last 14 days.
(d) A nursing facility must screen each resident as described below. Resident screenings must be documented in the resident's chart. Residents who meet any of the criteria must be cohorted appropriately.
(1) for the criteria in subsection (c)(1)-(5) upon admission or readmission to the facility; and
(2) for the criteria in subsection (c)(1)-(3) at least three times a day, occurring at least once each shift.
(e) A nursing facility must screen each employee or contractor for the criteria in subsection (c)(1)-(5) before entering the facility at the start of their shift. Staff screenings must be documented in a log kept at the facility entrance and must include the name of each person screened, the date and time of the evaluation, and the results of the evaluation. Staff who meet any of the criteria must not be permitted to enter the facility and must be sent home.
(f) A nursing facility must cohort residents based on the residents' COVID-19 status.
(g) A resident with unknown COVID-19 status must be quarantined and monitored for fever and symptoms of COVID-19, per CDC guidance.
(h) A COVID-19 positive resident must be isolated until the resident meets CDC guidelines for the discontinuation of transmission-based precautions.
(i) A nursing facility must implement a staffing policy requiring:
(1) the facility to designate staff to work with each cohort and not change that designation from one day to another, unless required to maintain adequate staffing for a cohort;
(2) staff to wear appropriate PPE, based on the cohort with which they work;
(3) staff to report to the facility via phone prior to reporting for work if they have known exposure or symptoms; and
(4) staff to perform self-monitoring on days they do not work.
(j) A nursing facility must develop and implement a policy regarding staff working with other long-term care (LTC) providers that:
(1) limits the sharing of staff with other LTC providers and facilities, unless required in order to maintain adequate staffing at a facility.
(2) maintains a list of staff who work for other LTC providers or facilities that includes the names and addresses of the other employers.
(3) requires all staff to report to the facility immediately if there are COVID-19 positive cases at the staff's other place of employment.
(4) requires the facility to notify the staff's other place of employment if the staff member is diagnosed with COVID-19; and
(5) requires staff to report to the facility which cohort they are assigned to at the staff's other place of employment. The NF must maintain the same cohort designation for that employee, unless required in order to maintain adequate staffing for a cohort.
(k) All nursing facility staff must wear facemasks while in the facility. Staff who are caring for COVID-19 positive residents and those caring for residents with unknown COVID-19 status must wear an N95 mask, gown, https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 3/10 9/2/2020 Emergency Rules Title 40 Exhibit I gloves, and goggles or a face shield. All facemasks and N95 masks must be in good functional condition, as described in the COVID-19 Response for Nursing Facilities at hhs.texas.gov, and worn appropriately, completely covering the nose and mouth, at all times.
(1) A nursing facility must comply with CDC guidance on the optimization of PPE when supply limitations require PPE to be reused.
(2) A nursing facility must document all efforts made to obtain PPE, including the organization contacted and the date of each attempt.
(l) A nursing facility must report COVID-19 activity as required by §19.1601(d)(2) and 42 Code of Federal Regulations §483.80(g)(1)-(2). COVID-19 activity must be reported to HHSC Complaint and Incident Intake, as described below.
(1) Report the first confirmed case of COVID-19 in staff or residents, and the first confirmed case of COVID-19 after a facility has been without new cases for 14 days or more, to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 within 24 hours of the confirmed positive result.
(2) Submit a Form 3613-A, Provider Investigation Report, to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 within five days from the day a confirmed case is reported to CII.
(m) If an executive order or other direction is issued by the Governor of Texas, the President of the United States, or another applicable authority, that is more restrictive than this rule or any minimum standard relating to a nursing facility, the nursing facility must comply with the executive order or other direction.
The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 6, 2020.
TRD-202003191
Karen Ray
Chief Counsel
Department of Aging and Disability Services
Effective date: August 6, 2020
Expiration date: December 3, 2020
For further information, please call: (512) 438-3161
40 TAC §19.2803
The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40, Texas Administrative Code, Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification, new §19.2803, concerning an emergency rule in response to COVID-19 describing requirements for limited outdoor visitation in a facility during Phase 1. As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing if it finds that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Texas Government Code §2001.034 may be effective for not longer than 120 days and may be renewed for not longer than 60 days.
https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 4/10 9/2/2020 Emergency Rules Title 40 Exhibit I BACKGROUND AND PURPOSE
The purpose of the emergency rulemaking is to support the Governor's March 13, 2020 proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this Nursing Facility COVID-19 Response - Phase 1 Visitation.
To protect nursing facility residents and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency rule to allow limited outdoor visitation in a nursing facility during phase 1. The purpose of the new rule is to describe the requirements related to such visits.
STATUTORY AUTHORITY
The emergency rulemaking is adopted under Texas Government Code §2001.034 and §531.0055, and Texas Health and Safety Code §242.001 and §242.037. Texas Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Texas Government Code §531.0055, authorizes the Executive Commissioner of HHSC to adopt rules governing the operation and provision of health and human services by the health and human services system. Texas Health and Safety Code §242.037 requires the Executive Commissioner of HHSC to make and enforce rules prescribing minimum standards quality of care and quality of life for nursing facility residents. Texas Health and Safety Code §242.001 states the goal of Chapter 242 is to ensure that nursing facilities in Texas deliver the highest possible quality of care and establish the minimum acceptable levels of care for individuals who are living in a nursing facility.
The new rule implements Texas Government Code §531.0055 and §531.021, Texas Health and Safety Code Chapter 242, and Texas Human Resources Code §32.021.
§19.2803.Nursing Facility COVID-19 Response - Phase 1 Visitation.
(a) The following words and terms, when used in this section, have the following meanings.
(1) Outdoor visit--A personal visit between a resident and one or more personal visitors that occurs in-person in a ddicated outdoor space.
(2) Window visit--A personal visit between a visitor and a resident during which the resident and personal visitor are separated by an open window.
(3) Vehicle parade--A personal visit between a resident and one or more personal visitors, during which the resident remains outdoors on the nursing facility campus, and a visitor drives past in a vehicle.
(4) Compassionate care visit--A personal visit between one permanently designated visitor and a resident experiencing a failure to thrive.
(5) Failure to thrive--A state of decline in a resident's physical or mental health, diagnosed by a physician and documented in the resident records, which may be caused by chronic concurrent disease and functional impairment. Signs of a failure to thrive include weight loss, decreased appetite, poor nutrition, and inactivity. Prevalent and predictive conditions that might lead to a failure to thrive include impaired physical function, malnutrition, depression, and cognitive impairment.
(6) Outbreak--One or more laboratory confirmed cases of COVID-19 identified in either a resident or paid/unpaid staff.
https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 5/10 9/2/2020 Emergency Rules Title 40 Exhibit I (b) A nursing facility with a Phase 1 facility designation approved by the Texas Health and Human Services Commission (HHSC) may allow limited personal visitation as permitted by this section.
(c) To request a Phase 1 facility designation, a nursing facility submits a completed LTCR form 2192, Phase 1 COVID-19 Status Attestation Form, to the Regional Director in the LTCR Region where the facility is located.
(d) To receive a Phase 1 facility designation, a nursing facility must demonstrate:
(1) there have been no confirmed COVID-19 cases in staff for at least 14 consecutive days;
(2) there are no active COVID-19 cases in residents;
(3) facility staff are tested for COVID-19 weekly; and
(4) if a nursing facility has had previous cases of COVID-19 in staff or residents, HHSC LTCR has conducted a verification survey and confirmed the following:
(A) all staff and residents have fully recovered;
(B) the nursing facility has adequate staffing to continue care for all residents and supervise visits permitted by this section; and
(C) the nursing facility is in compliance with infection control requirements and emergency rules related to COVID-19.
(e) A nursing facility with a Phase 1 facility designation may allow outdoor visits, window visits, vehicle parades, and compassionate care visits involving residents and personal visitors. The following requirements apply to all visitation allowed under this section:
(1) Visits must be scheduled in advance and are by appointment only.
(2) Visitation appointments must be scheduled to allow time for cleaning and sanitation of the visitation area between visits.
(3) Physical contact between residents and visitors is prohibited.
(4) Visits are permitted where adequate space is available that meets criteria and when adequate staff are available to monitor visits.
(5) All visitors must be screened outside of the nursing facility prior to being allowed to visit, except visitors participating in a vehicle parade. Visitors who meet any of the following screening criteria must leave the nursing facility campus and reschedule the visit:
(A) fever defined as a temperature of 100.4 Fahrenheit and above, or signs or symptoms of a respiratory infection, such as cough, shortness of breath, or sore throat;
(B) signs or symptoms of COVID-19, including chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea;
(C) additional signs and symptoms as outlined by the Centers for Disease Control and Prevention (CDC) in Symptoms of Coronavirus at cdc.gov;
(D) contact in the last 14 days with someone who has a confirmed diagnosis of COVID-19, is under investigation for COVID-19, or is ill with a respiratory illness; or
https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 6/10 9/2/2020 Emergency Rules Title 40 Exhibit I (E) international travel within the last 14 days.
(6) The resident must wear a facemask or face covering (if tolerated) throughout the visit.
(7) The nursing facility must ensure social distancing of at least six feet is maintained between visitors and residents at all times and limit the number of visitors and residents in the visitation area as needed.
(8) The nursing facility can limit the number of visitors per resident per week, and the length of time per visit, to ensure equal access by all residents to visitors.
(9) Cleaning and disinfecting of the visitation area, furniture, and all other items must be performed, per CDC guidance, before and after each visit.
(10) The nursing facility must ensure a comfortable and safe outdoor visiting area (i.e., considering outside air temperatures and ventilation).
(11) The nursing facility must designate an outdoor area for visitation that is separated from residents and limits the ability of the visitor to interact with residents.
(f) The following requirements apply to outdoor visits, window visits, and compassionate care visits:
(1) A nursing facility must provide hand washing stations, or hand sanitizer, to the visitor and resident before and after visits.
(2) The visitor and the resident must practice hand hygiene before and after the visit.
(3) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit.
(g) The following requirements apply to vehicle parades.
(1) Visitors must remain in their vehicles throughout the parade.
(2) The nursing facility must ensure social distancing of at least six feet is maintained between residents throughout the parade.
(3) The nursing facility must ensure residents are not closer than 10 feet to the vehicles for safety reasons.
(4) The resident must wear a facemask or face covering (if tolerated) throughout the visit.
(h) The following requirements apply to compassionate care visits:
(1) The visit is limited to residents experiencing a failure to thrive.
(2) The visit is limited to one permanently designated personal visitor per resident at any time.
(3) If the resident experiencing failure to thrive cannot tolerate an outdoor visit, the visit can take place in the resident's room or other area of the facility separated from other residents. The nursing facility must limit the movement of the visitor through the facility to ensure interaction with other residents is minimized.
(4) The visit must be supervised by facility staff for the duration of the visit.
(5) The resident must wear a facemask or face covering (if tolerated) throughout the visit.
(6) The nursing facility must ensure social distancing of at least six feet is maintained between visitors and residents at all times.
(7) The visitor must wear a facemask or face covering over both the mouth and nose throughout the visit. https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 7/10 9/2/2020 Emergency Rules Title 40 Exhibit I (i) If, at any time after designation as a Phase 1 facility by HHSC, the facility experiences an outbreak of COVID-19, the facility must notify the Regional Director in the LTCR Region where the facility is located that the facility no longer meets Phase 1 criteria, and all Phase 1 visitation must be cancelled until the facility meets the criteria described in subsection (d) of this section.
The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on August 7, 2020.
TRD-202003201
Karen Ray
Chief Counsel
Department of Aging and Disability Services
Effective date: August 7, 2020
Expiration date: December 4, 2020
For further information, please call: (512) 438-3161
PART 20. TEXAS WORKFORCE COMMISSION
CHAPTER 815. UNEMPLOYMENT INSURANCE
SUBCHAPTER A. GENERAL PROVISIONS
40 TAC §815.1
The Texas Workforce Commission is renewing the effectiveness of emergency amended §815.1 for a 60-day period. The text of the emergency rule was originally published in the May 8, 2020, issue of the Texas Register (45 TexReg 2953).
Filed with the Office of the Secretary of State on August 7, 2020.
TRD-202003195
Dawn Cronin
Director, Workforce Program Policy
Texas Workforce Commission
Original effective date: April 28, 2020
Expiration date: October 24, 2020
For further information, please call: (512) 689-9855
SUBCHAPTER B. BENEFITS, CLAIMS, AND APPEALS
40 TAC §815.12, §815.29 https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 8/10 9/2/2020 Emergency Rules Title 40 Exhibit I The Texas Workforce Commission is renewing the effectiveness of emergency amended §815.12 and §815.29 for a 60-day period. The text of the emergency rule was originally published in the April 24, 2020, issue of the Texas Register (45 TexReg 2612).
Filed with the Office of the Secretary of State on August 7, 2020.
TRD-202003194
Dawn Cronin
Director, Workforce Program Policy
Texas Workforce Commission
Original effective date: April 14, 2020
Expiration date: October 10, 2020
For further information, please call: (512) 689-9855
SUBCHAPTER F. EXTENDED BENEFITS
40 TAC §§815.170 - 815.172, 815.174
The Texas Workforce Commission is renewing the effectiveness of emergency amended §§815.170 - 815.172 and 815.174 for a 60-day period. The text of the emergency rule was originally published in the May 8, 2020, issue of the Texas Register (45 TexReg 2951).
Filed with the Office of the Secretary of State on August 7, 2020.
TRD-202003196
Dawn Cronin
Director, Workforce Program Policy
Texas Workforce Commission
Original effective date: April 28, 2020
Expiration date: October 24, 2020
For further information, please call: (512) 689-9855
40 TAC §815.173
The Texas Workforce Commission is renewing the effectiveness of emergency repeal §815.173 for a 60-day period. The text of the emergency rule was originally published in the May 8, 2020, issue of the Texas Register (45 TexReg 2951).
Filed with the Office of the Secretary of State on August 7, 2020.
TRD-202003197
Dawn Cronin https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 9/10 9/2/2020 Emergency Rules Title 40 Exhibit I Director, Workforce Program Policy
Texas Workforce Commission
Original effective date: April 28, 2020
Expiration date: October 24, 2020
For further information, please call: (512) 689-9855
https://www.sos.texas.gov/texreg/archive/August212020/Emergency Rules/40.SOCIAL SERVICES AND ASSISTANCE .html#15 10/10 Exhibit J
COVID-19 RESPONSE FOR NURSING FACILITIES
Abstract This document provides guidance to Nursing Facilities on Response Actions in the event of a COVID-19 exposure.
[Version 3.3] [7/29/20]
Exhibit J
Contents
Contents ...... 2
POINTS OF CONTACT FOR THIS DOCUMENT ...... 5
TABLE OF CHANGES ...... 6
1. Purpose...... 8
2. Goals ...... 9
3. Summary ...... 10
4. Description of a Nursing Facility ...... 11
5. NFs and COVID-19 Environment ...... 12
Facility Demographics ...... 12
Facility Considerations ...... 13
Resident Demographics ...... 13
NF Staffing Considerations ...... 14
Visitors ...... 14
6. To Do’s for Nursing Facilities: ...... 15
7. S.P.I.C.E...... 19
8. HHSC Long-term Care Regulat[ion] Activities with NFs that have Positive COVID-19 Cases ...... 20
9. Facility Activities Required for LTC COVID-19 Response ...... 21
10...... State\Regional\Local Support ...... 25
Texas COVID-19 Assistance Team - LTC ...... 25
Rapid Assessment Quick Response Force ...... 25
ATTACHMENT 1: Immediate Response Guidelines ...... 27 Exhibit J
FACILITY ACTIONS ...... 27
HHSC ACTIONS ...... 30
EXTERNAL ACTIONS ...... 31
ATTACHMENT 2: SPICE Graphic ...... 33
ATTACHMENT 3: Interim Guidance for Prevention, Management, and Reporting of Coronavirus Disease 2019 (COVID-19) Outbreaks in LTC Facilities ...... 34
Purpose ...... 34
Background ...... 34
Immediate Prevention Measures ...... 34
Provide Supplies for Recommended Infection Prevention and Control Practices ...... 37
Control Measures for Residents ...... 38
Control Measures for Staff ...... 42
Reporting COVID-19 ...... 46
Outbreak Management ...... 47
PPE Use When Caring for Residents with COVID-19 ...... 49
Glossary of Acronyms in Alphabetical Order ...... 52
List of Referenced Resources...... 53
ASPR TRACIE ...... 53
CDC ...... 53
CMS ...... 54
DSHS ...... 54
EPA ...... 54
HHS ...... 55
HHSC ...... 55 Exhibit J
NIOSH ...... 55
OOG ...... 55
OSHA ...... 55
ATTACHMENT 4: Comprehensive Mitigation Plan ...... 56
ATTACHMENT 5: Infographic - Facility Actions for COVID-19 Response 58
ATTACHMENT 6: DSHS Healthcare Personnel Return to Work Strategies - Updated May 5, 2020 ...... 60
ATTACHMENT 7: Discontinuation of Transmission-Based Precautions and Disposition of Residents with COVID-19 ...... 62
ATTACHMENT 8: CDC Guidance - Optimization of Facemasks Infographic and Do’s and Dont's for Facemask Use Infographic ...... 63
ATTACHMENT 9: PPE Donning and Doffing Infographic ...... 66
ATTACHMENT 10: User Seal Check – Infographic...... 69
ATTACHMENT 11: RA-QRF Deployment Process ...... 71
ATTACHMENT 12: RA-QRF Testing and Notification ...... 72
ATTACHMENT 13: Three Key Factors Required for a Respirator to be Effective - Infographic ...... 73
ATTACHMENT 14: Isolation Unit ...... 74
ATTACHMENT 15: Symptom Monitoring Log ...... 77
ATTACHMENT 16: Tracking Line List ...... 78
Exhibit J
POINTS OF CONTACT FOR THIS DOCUMENT
Texas Health and Human Services Commission
Regulatory Services Division
Michelle Dionne-Vahalik, DNP, RN Associate Commissioner, LCTR To activate SWAT assistance [email protected] Phone: 512-962-3260
Renee Blanch-Haley, BSN, RN Director of Survey Operations LTCR Survey Operations [email protected] Phone: 512-571-2163
Cecilia Cavuto Nursing Facility, Policy Manager Contact for Policy and Rule [email protected] [email protected] Phone: 512-650-6401
Michael Gayle, PT Director of the Quality Monitoring Program Nursing Facility Technical Assistance and Infection Control Best Practice [email protected] Phone: 512-318-6902 Exhibit J
TABLE OF CHANGES
Document Version Date Change Comments
2.3 04/14/2020 Additions to pages 9, 11, 13, 14, 15, 16, 24, 25 and 26; attachments 4 and 5 added
2.4 04/21/2020 Additions to pages 9, 10, 12, 13, 14, 15, 21, 23, 24, 25, 26, 27, 28, 29, and list of reference resources added
2.5 04.28.2020 Additions to pages 5, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 27, 28, 29, 32, 33, 34, 35, and guidance in attachment 6 and attachment 7 added
2.6 05.04.2020 Additions to pages 9, 10, 12, 27, 28, 34, 36, 43, 44, and guidance in attachment 7, attachment 9, and attachment 10 added
2.7 05.08.2020 Additions to pages 9, 10, 11, 13, 14, 15, 16, 17, 20, 27, 28, 33, 34, 35, 36, 37, 38, 42, 43 and guidance in attachment 11 and attachment 12 added
2.8 05.13.2020 Additions to pages 9, 10, 11, 13, 14, 18, 19, 22, 26, 30. 31, 32, 33, 35, 38, 39, 41 and guidance in attachment 13 and attachment 14 added
2.9 05.18.2020 Additions to pages 3, 9, 11, 14, 15, 18, 22, 26, 28, 30, 31, 32, 33, 35, 36, 37, 38, 39, 41, 42, 44 and guidance in attachment 15 and attachment 16 added
3.0 05.21.2020 Additions to pages 13, 16, 17, 21, 26, 32, 33, 34, 37, 41, 42, 46, 47, 49, 52, 54, 56, 57, 60, 63, 67, 68, 71 and 72
3.1 06.02.2020 Entire document revised for accessibility, style and HHSC branding. Additions to pages 15, 16, 31, 34, 35, 36, 37, 39, 40, 41, 44, 45 and 49
[3.2] [07.23.2020] [Additions to pages 12, 14, 15, 16, 17, 19, 20, 21, 28, 30, 32, 34, 37, 40, 41, 42, 43, 45, 46, 51, 52 and 55 and edits to attachment 6 on page 55 and attachment 7 on page 57]
[3.3] [07.27.2020] [Additions to pages 19, 24, 25, 26, 29, 32, 48, 49, and 50] Exhibit J
Document Version Date Change Comments
Exhibit J
1. Purpose
The purpose of this document is to provide NFs with response guidance in the event of a positive COVID-19 case associated with the facility. Exhibit J
2. Goals
• Rapid identification of COVID-19 situation in a NF • Prevention of spread within the facility • Protection of residents, staff and visitors • Provision of care for an infected resident(s) • Recovery from an in-house NF COVID-19 event Exhibit J
3. Summary
Residents of NFs are more susceptible to COVID-19 infection and the detrimental impact of the virus than the general population. In addition to the susceptibility of residents, a LTC environment presents challenges to infection control and the ability to contain an outbreak, resulting in potentially rapid spread among a highly vulnerable population.
This document provides NFs immediate actions to consider and actions for extended periods after a facility is made aware of potential infection of a resident, provider or visitor. Exhibit J
4. Description of a Nursing Facility
A NF provides institutional care to people whose medical condition regularly requires the skills of licensed nurses. NF services are available to people who receive Medicaid assistance or those who wish to private pay for their care. The NF must provide for the needs of each resident, including room and board, social services, over-the-counter medications, medical supplies and equipment, and personal needs items.
A SNF is a special facility or part of a hospital that provides medically necessary professional services from nurses, physical and occupational therapists, speech pathologists, and audiologists. SNFs provide round-the-clock assistance with health care and activities of daily living. SNFs are used for short-term rehabilitative stays after a resident is released from a hospital.
A hospital-based SNF is located in a hospital and provides skilled nursing care and rehabilitation services for people who have been discharged from that hospital but who are unable to return home right away. They do not accept general admissions. Exhibit J
5. NFs and COVID-19 Environment
A NF is typically a mix of semi-private and private resident bedrooms; the majority of the bedrooms are semi-private, housing two to four people. The bedrooms usually do not have physical barriers like walls or partitions separating the space allotted for each resident inside the room. Rules require a minimum of 100 square feet for a private (one person) bedroom, 80 square feet per person in multiple occupant rooms, and a minimum dimension of 10 feet. Many of the common areas in a NF are intended for use by groups of people. These areas include dining and living room spaces, activity and therapy areas, and common bathing units, which are provided at a ratio of one tub or shower for every 20 residents.
Impact of environment on COVID-19 response:
A typical NF is not physically designed to effectively support social distancing measures, while at the same time housing numerous residents who might require quarantine measures including isolation. The limitations of the physical environment mean many of the protective measures required to limit potential exposure and spread must be accomplished by staff who are already working under extreme conditions.
NFs can promote social distancing in a variety of ways. For example, dining and activities can take place in resident rooms and when able, residents can participate in medication passes while remaining in their doorways. Current CMS and state guidance for NFs state that communal activities, including dining, should be canceled, and no more than 10 people, maintaining at least 6 feet of separation, can be in a room at any time. Meals can be served in the dining room for residents who require assistance with feeding if social distancing is practiced. Facility Demographics
NFs are located in metropolitan, urban, and rural locales. Each locale has specific characteristics that affect workforce availability, health care system support, and interactions with public health, emergency care, and jurisdictional administration. Texas currently has 1,220 NFs and nine hospital-based SNF units.
Impact of facility demographics on COVID-19 response:
NFs in more densely populated locations are likely to experience higher risk for exposure among staff and visitors. As a result, these facilities have a higher risk of infection and face more challenges controlling spread when infection occurs. They are also more likely to face staffing shortages because of competitive job markets. Exhibit J
NFs in more rural locations have less health care system support, might not have local health authorities, and have smaller staffing pools, making it harder to cover shortages that result from probable exposure. Facilities in rural areas might also be more challenged to find equipment, such as personal protective equipment (PPE) and ventilators, necessary to care for COVID-19 positive residents. Facility Considerations
Facilities might have small, medium, or large bed capacity within buildings differing in age, size, available space, and equipment. Available services also differ by facility, affecting the level of available care; ventilator support might not be present, and the types of health care providers on site will also vary.
Impact of facility considerations on COVID-19 response:
There are NFs with limited or no isolation rooms available. Statewide, approximately 30 NFs are equipped to care for residents on ventilators. Bed capacity (along with staff and PPE availability) also affects the number of residents for which each facility can provide care. COVID-19 positive residents will increase the staff and resources required to provide care, further limiting the number of residents that a facility can serve. Resident Demographics
All NF residents must meet medical necessity to reside in a NF. While all have medical needs, each resident is unique and might require rehabilitation services, minimal supportive care, or significant medical care. Resident conditions will vary physically and mentally, affecting mobility and intellectual capacity.
Impact of resident demographics on COVID -19 response
All NF residents require care from medical professionals who are in increasingly short supply as the pandemic continues. Also, the subpopulation of residents with dementia and Alzheimer’s disease are often unable to express when they experience symptoms and could unknowingly (and without staff knowing) spread the virus if infected. This population is also less likely to understand why social distancing and quarantine are necessary and can present challenging behaviors when staff attempt to enforce such restrictions.
Other subpopulations require specialized medical care, including specialized diets, ventilator care, gastronomy (feeding) tubes, and wound care for pressure sores. These specialized needs require a combination of skilled and non-skilled caregivers. Having COVID-19 infections in a facility will increase the demands on and for staff. Exhibit J
NF Staffing Considerations The NF workforce is made up of medical professionals and direct care staff including: registered nurses (RNs), licensed vocational nurses (LVNs), certified nurse aides (CNAs), medication aides, respiratory therapists, facility support staff, and other skilled and non-skilled workers. Rules require NFs to provide nursing services at a ratio of not less than one licensed nurse for every 20 residents, or a minimum of 0.4 licensed-care hours per resident per day.
Impact of NF staffing considerations on COVID-19 response:
Many NF residents’ daily activities, such as dining, bathing, grooming and ambulating, require partial or total assistance from facility staff. Caring for someone with COVID- 19 requires additional time and resources, including PPE, to maintain infection control and protect other residents and staff. As staff are exposed, become symptomatic or test positive for COVID-19, the available workforce will decline making it even more challenging for NFs to provide care.
Additionally, NFs don’t normally have a physician on-site. Typically, there is an RN and several LVNs and CNAs on staff. Staffing shortages resulting from possible exposure could lead to NFs refusing to admit residents because they cannot provide care. It is also common for NF staff to work in more than one NF, so if an employee is exposed, it is likely he or she will expose residents and staff in more than one NF, making it difficult to contain spread. A NF should follow CMS guidance (released April 2, 2020) related to NF staffing. Visitors During routine NF operations, visitors including family members, volunteers, consultants, external providers, and contractors regularly enter facilities. Many perform services essential for facility function, or in the case of service providers such as hospice and dialysis staff, they provide services critical to resident care. It is important to note current CMS and state guidance to NFs requires they limit visitors to only those who are providing critical assistance and only if these essential visitors are properly screened.
Impact of visitors on COVID-19 response:
Despite efforts to screen visitors prior to allowing them to enter the facility, every person allowed inside the building increases the risk of infection. Some people will present as asymptomatic during screening but will have COVID-19 and unknowingly spread the virus. Some visitors will not follow standard precautions such as proper hand-washing, use of hand sanitizer, use of PPE, isolation protocols, and limiting the number of areas in the building that they access – all of which increases the risk of infection for residents and staff. Exhibit J
6. To Do’s for Nursing Facilities:
• Review the CDC’s Key Strategies to Prepare for COVID-19 in Long-term Care Facilities. • Review the CDC’s Preparing for COVID-19: Long-term Care Facilities, Nursing Homes. • Review the CDC’s Responding to Coronavirus (COVID-19) in Nursing Homes. • Review the CDC’s Testing Guidelines for Nursing Homes. • Review the CDC’s Strategies to Mitigate Healthcare Personnel Staffing Shortages. • Review the CDC’s Infection Prevention and Control Assessment Tool for Nursing Homes Preparing for COVID-19 • Review the CDC’s Considerations for Memory Care Units in Long-term Care Facilities • Review HHSC’s Helping Residents with Dementia Prevent the Spread of COVID-19 in LTC Communities • Review CMS blanket (1135) waivers, which include: o Resident Care and Program Requirements . 3-day prior hospitalization . reporting MDS . staffing data submission . PASRR . resident groups . CNA training and certification . physician visits . resident roommates and grouping . resident transfer and discharge . QAPI . in-service training . detailed information sharing for discharge planning . clinical records . paid feeding assistants o Physical Environment and LSC . inspection, testing, and maintenance of systems and equipment . resident bedroom outside window or door . ABHR dispensers . fire drills . temporary certification of non-SNF building . resident bedrooms in areas not normally used as bedrooms . standing up dedicated isolation NFs Exhibit J
. temporary construction, including temporary walls or barriers between residents
Note: Temporary walls or barriers or plastic sheeting must not impede or obstruct the means of egress, fire safety components or fire safety systems (e.g., corridors, exit doors, smoke barrier doors, fire alarm pulls, fire sprinklers, smoke detectors, fire alarm panels, or fire extinguishers).
• Review resident isolation and quarantine plans with staff. • Review handwashing, surface-cleaning, and other environmental hygiene precautions with staff. • Develop a staffing contingency plan in case a large number of staff must self-quarantine or isolate because of potential exposure, being probable of, or positive for COVID-19. • Assign at least one individual with training in infection prevention and control (IPC) to provide on-site management of COVID-19 prevention and response activities. • Report a confirmed COVID-19 case to the local health department or DSHS and to HHSC. • Report all confirmed COVID-19 cases and persons under investigation for COVID-19 among residents and staff to the CDC via NHSN weekly. See CMS QSO 20-29. • Keep all residents’ and their representatives up to date on the conditions inside the facility, such as when new cases of COVID-19 occur. See CMS QSO 20-29. • Obtain and properly use PPE. • Review the CDC’s LTC Webinar Series, including: o Clean Hands o Closely Monitor Residents o Keep COVID-19 Out o PPE Lessons o Sparkling Surfaces • Review CDC video Doffing PPE: Disinfect Your Shoes • Comply with all CMS and CDC guidance related to infection control. (NFs need to frequently monitor CDC and CMS guidance, as it is being updated often.) • For the duration of the state of emergency, all NF personnel should wear a facemask while in the facility. Staff who are have been appropriately trained and fit-tested can use N95 respirators. Staff who are caring for residents with COVID-19 or caring for residents in a building with widespread COVID-19 infection, should wear an N95 respirator and all suggested PPE. See guidance in the section related to PPE use when caring for residents with COVID-19. Exhibit J
• If N95 or other respirators are used, review OSHA’s Respiratory Protection Training Videos. • Actively screen, monitor, and surveil everyone who comes into the facility. • To avoid transmission within facilities, NFs should use separate staffing teams for COVID-19-positive residents to the best of their ability, and designate separate facilities or units within a facility to separate residents into three categories: those who are COVID-19-negative, those who are COVID-19-positive, and those with unknown COVID-19 status. • Quarantine residents with exposure or symptoms. • Isolate residents with positive cases. • Upon the first positive test result of a NF staff member or resident, the facility shall work with local health authorities, DSHS, and HHSC to coordinate testing of all NF staff and residents. • Follow direction from DSHS, HHSC, and TDEM as they develop and implement a plan to test all residents and NF staff. • Clean and sanitize the facility when a positive case occurs. • Coordinate resident diagnoses and symptoms with transferring and receiving hospitals and other NFs. • Communicate with residents, staff, and family when exposure, probable, or confirmed cases occur in the facility. • Keep an up-to-date list of all staff who work in other facilities. • Require staff self-monitoring on days they work and on days they don’t work. • Require staff to report via phone prior to reporting for work if they have known exposure or symptoms. • Follow the guidance beginning on page 41 of this document to determine when staff can return to work after recovering from an illness. • Post a list of state contacts where it is visible on all shifts. The list should at least include phone numbers for the local health authority or DSHS office and the regional HHSC LTCR office. • Follow physician’s plan for immediate care of any resident with a positive case. Orders can include increased assessment frequency, increased monitoring of fluid intake and output, supportive care, a treatment plan, and what to do in case of a change in the resident’s status. • Inform the resident of treatment or supportive care plans; residents have the right to participate in care planning. • Use the ASPR TRACIE workforce virtual toolkit. • Review the ASPR TRACIE resources document: Nursing Home Concepts of Operations for Infection Prevention and Control • If needed, request deployment of the Rapid Assessment Quick Response Force. Exhibit J
Note: New admissions, readmissions, and residents who have spent one or more nights away from the facility are all considered residents with unknown COVID-19 status. Residents who leave the facility for medically necessary appointments and return the same day are not considered to have unknown COVID-19 status. These residents’ COVID-19 status is the same as when they left the facility for their appointment and can return to their usual room. Exhibit J
7. S.P.I.C.E.
Recognizing notification of a potential COVID-19 situation in a facility can result in disorientation, questions, and confusion; this document suggests NFs focus on the following five basic actions (S.P.I.C.E.) to anchor activities:
• Surveillance – Monitor for symptoms – fever, cough, shortness of breath, or difficulty breathing – for each resident at least once each shift. • Protection/PPE – Protect workforce and residents through soap/water; hand sanitizer; facemask. If coughing or potential splash precautions are needed, wear a gown and face/eye shields. Refer to DSHS guidance. • Isolate – Residents with probable and confirmed cases need to be isolated. • Communicate – Call local health department/authority or DSHS and HHSC Long-term Care Regulation (LTCR) to report COVID-19 activity as required. • Evaluate – Infection control processes, spread of infection and mitigation efforts, and staffing availability need to be assessed.
S.P.I.C.E. is not meant to be all-encompassing. It is suggested to assist initial actions and be a reminder of necessary activities. Exhibit J
8. HHSC Long-term Care Regulat[ion] Activities with NFs that have Positive COVID-19 Cases
For a report of a positive COVID-19 test (resident or staff) in a NF, HHSC will take the following steps:
• Verify the NF is prohibiting non-essential visitors. • Generate a priority 1 intake (must be investigated within 24 hours). • Conduct a focused review of facility infection control processes. • Communicate with the local health department/local health authority and DSHS. • Determine the number of residents probable or positive for COVID-19. • Determine the number of staff probable or positive for COVID-19. • Review facility isolation precautions and determine how residents are isolated in the facility (dedicated wing, private room) to ensure compliance with requirements. • Verify that upon the first positive test result of a NF staff member or resident, the facility worked with local health authorities, DSHS, and HHSC to coordinate testing of all NF staff and residents. • Determine that all staff probable or positive for COVID-19 have been sent home and the facility knows to coordinate any return to work with the local health department. • Determine if facilities have sufficient PPE. • Determine if facilities are screening residents and staff, and at what frequency. • Determine if others (contract staff, family members) are also being tested. • Determine if there is a control or quarantine order. • Ensure the control/quarantine orders are followed. • Perform a call-down to all other facilities in the county when staff at one facility tests positive for COVID-19. • Determine if facilities are following rules and regulations related to admission and discharge and are readmitting residents when appropriate. • Determine if staff, residents, and families are notified of positive COVID- 19 cases in the facility. • Track facilities by program type and number of positive and probable cases. • Track hospitalizations of COVID-19 positive NF residents. • Track deaths of COVID-19 positive NF residents. • Maintain communication with facilities after investigations are complete. Exhibit J
9. Facility Activities Required for LTC COVID-19 Response
In Advance (actions focused on response)
• Review/create cohort plans for residents • Review Health Care Associated Infection (HAI) plan • Determine/review who is responsible for specific facility plans • Assign at least one individual with training in IPC to provide on-site management of COVID-19 prevention and response activities • Identify desired applicable waivers • Develop communication plan (external and internal) • Conduct supply/resource evaluation • Review CDC Strategies for Optimizing the Supply of Facemasks and review the three levels of surge capacity. • Enact MORE resident/staff/visitor screening • Review the CDC’s Preparing for COVID-19: Long-term Care Facilities, Nursing Homes. • Review Responding to Coronavirus (COVID-19) in Nursing Homes. • Review Testing Guidelines for Nursing Homes. • Review Strategies to Mitigate Healthcare Personnel Staffing Shortages. • Review the CDC’s LTC Webinar Series. • Review OSHA’s Respiratory Protection Training Videos. • Review the CDC’s Considerations for Memory Care Units in Long-term Care Facilities • Review HHSC’s Helping Residents with Dementia Prevent the Spread of COVID-19 in LTC Communities • Develop a staffing contingency plan in case a large number of staff must self-quarantine or isolate because of potential exposure, being probable of, or positive for COVID-19. • Follow direction from DSHS, HHSC, and TDEM as they develop and implement a plan to test all residents and NF staff.
Immediate (0-24 hours)
• Activate resident isolation/facility cohort plan, including establishing a unit, wing, or group of rooms for any positive residents. • Supply PPE to care for residents positive for COVID-19. See attachment 9 about donning (putting on) and doffing (taking off) PPE, and attachment 8 about optimizing the use of facemasks and do’s and don’ts for facemask use. Exhibit J
• Provide separate spaces to don (put on) and doff (take off) PPE when possible • When a single area is provided for donning and doffing PPE, these principals should be followed: o Provide for hand hygiene and adequate disposal of used PPE in the donning and doffing area o Only donning or doffing should occur at any given time – do not perform these activities at the same time o Only two people should be in the area at any time - use the buddy system to assure that donning and doffing is done correctly • Screen residents for signs and symptoms at least once each shift • Screen staff for signs and symptoms at least at the beginning of their shift • Enact HAI procedures • Clean and disinfect facility o High-touch surfaces include items like doorknobs, light switches, handrails, countertops - clean and disinfect frequently o Workstations include items like computers, chairs, keypads, common- use items - clean and disinfect frequently o Equipment includes items like blood pressure cuffs, hoyer lifts and other shared equipment used for resident care - clean and disinfect after each use o Use EPA-registered disinfectants that have qualified under EPA’s emerging viral pathogens program for use against SARS-CoV-2 • Confirm case definitions • Identify HCW outside activities • Activate resident transport protocols (for transporting residents out) • Establish contact with receiving agencies (hospitals, other facilities) • Identify lead at facility and determine stakeholders involved external to facility • Engage with community partners (public health, health care, organizational leadership, local/state administrators) • Review/establish testing plan • Activate all communication plans • Determine need for facility restrictions/lock-down • Supply resource evaluations • Maintain resident care • Upon the first positive test result of a NF staff member or resident, work with local health authorities, DSHS, and HHSC to coordinate testing of all NF staff and residents. • Report a[ll] confirmed COVID-19 cases to the local health department or DSHS. [In instances where there is no local health authority, report to DSHS directly.] Exhibit J
• Report the first confirmed case of COVID-19 in staff or residents, and the first confirmed case of COVID-19 after a facility has been without cases for 14 days or more, to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 within 24 hours of the positive test. • Submit a Form 3613-A provider investigation report to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 within 5 days from the day a confirmed case is reported.] • Report [weekly] all confirmed [and probable] COVID-19 cases and persons under investigation for COVID-19 among residents and staff to the CDC via NHSN weekly. See CMS QSO 20-29. [(Note: This includes residents previously treated for COVID-19. Also report the following to NHSN: o Total deaths, including COVID-19 deaths among residents and staff, o Personal protective equipment and hand hygiene supplies in the facility, o Ventilator capacity and supplies in the facility, o Resident beds and census, o Access to COVID-19 testing while the resident is in the facility, and o Staffing shortages.)] • Keep all residents’ and their representatives up to date on the conditions inside the facility, such as when new cases of COVID-19 occur. See CMS QSO 20-29. [These notifications should be submitted by 5 p.m. the next calendar day; then updated weekly, or sooner, when there are new COVID- 19 cases, or three or more residents or staff with new-onset of respiratory symptoms within 72 hours of each other.] • If needed, request deployment of the Rapid Assessment Quick Response Force.
Extended (24-72 hours)
• Supply PPE for health care workers and staff • Screen residents for signs and symptoms at least once each shift • Screen staff for signs and symptoms at least at the beginning of their shift • Continue specialized HAI procedures • Activate resident transport protocols (for transporting residents out/in) • Establish contact with transporting/receiving agencies (hospitals, other facilities) • Engage with external partners • Testing • Determine need for facility restrictions/lock-down • Consider additional healthcare needs • Maintain resident care • Work with your LHD or DSHS to establish a resident recovery plan, including when a resident is considered recovered and next steps for care.
Long Term (72 hours plus) Exhibit J
• Screen resident for signs and symptoms at least once each shift • Screen staff for signs and symptoms at least at the beginning of their shift • Continue cleaning and disinfecting procedures • Activate transport (residents in) protocols • Establish contact with transporting/receiving agencies (hospitals, other facilities) • Lift of facility restrictions/lock-down • Consider additional healthcare needs • Maintain resident care • [Report all deaths (COVID-19 and non-COVID-19 related) that occur in a NF, and those that occur within 24 hours after transferring a resident to a hospital from the NF, to HHSC via TULIP 10 working days after the last day of the month in which the death occurred.]
Exhibit J
10. State\Regional\Local Support
Texas HHSC will serve as the lead state agency in the state’s response to an LTC COVID-19 event. HHSC actions will include:
• Developing recommendations in consultation with DSHS • Ensuring appropriate/assistance with resident movement • Providing subject matter experts (SME): LTC, HAI, epidemiology • Coordination of HHSC, DSHS, emergency management and local actions Texas COVID-19 Assistance Team - LTC
In addition to the activities of Section VI of this response and those above, HHSC will coordinate formation of a Texas COVID-19 Assistance Team – LTC (TCAT-LTC). This team will include representatives from HHSC, DSHS, local health department (as applicable) and emergency management (as applicable.)
This team will assist NFs with management of a COVID-19 event by providing subject matter expertise, resource request management, and other support to facility actions through initial response activities. The TCAT-LTC will remain available for a maximum of 48 hours from activation. State and local entities will provide SMEs and continued assistance after TCAT-LTC deactivation.
To activate TCAT-NF assistance, contact the LTCR Associate Commissioner. Rapid Assessment Quick Response Force
In addition to the activities of Section VI of this response and those above, HHSC and DSHS will coordinate formation of a Rapid Assessment Quick Response Force (RA- QRF) team.
The RA-QRF team will assist NFs by providing a rapid response and medical triage team that can be deployed by DSHS through the Emergency Medical Task Force upon notification of a positive COVID-19 resident. The RA-QRF team will triage, assess, and determine resource requirements for response to facilities with vulnerable populations affected by COVID-19. If needed, an additional team can be sent to assist the facility with immediate needs.
The RA-QRF team will provide initial triage, site assessment, review of the facility’s policies and procedures, PPE and infection control guidelines, and provide recommendations to help reduce the spread of COVID-19. The RA-QRF will provide COVID-19 testing for residents and staff, provide immediate on- site training recommendations and PPE education. Exhibit J
To activate RA-QRF team assistance, contact the LTCR Associate Commissioner and DSHS. Exhibit J
ATTACHMENT 1: Immediate Response Guidelines
IMMEDIATE ACTIONS (0-24 hours) FACILITY ACTIONS
REVIEW SPICE ACTIVITIES
Prevent further disease spread
• Determine number of residents potentially infected • Determine number of staff potentially infected • Invoke isolation precautions/plans • Determine who has been tested • If applicable, invoke quarantine or control order • [Prevent staff working in more than one facility when possible] • Identify if exposed staff are working in other facilities • Upon the first positive test result of a NF staff member or resident, work with local health authorities, DSHS, and HHSC to coordinate testing of all NF staff and residents. • [Report the first confirmed case of COVID-19 in staff or residents, and the first confirmed case of COVID-19 after a facility has been without cases for 14 days or more, as a self-reported incident.] • Report a confirmed COVID-19 case to the local health department or DSHS and to HHSC. • Report all confirmed COVID-19 cases and persons under investigation for COVID-19 among residents and staff to the CDC via NHSN weekly. See CMS QSO 20-29. • Keep all residents and their representatives up to date on the conditions inside the facility, such as when new cases of COVID-19 occur. See CMS QSO 20-29. • Follow direction from DSHS, HHSC, and TDEM as they develop and implement a plan to test all residents and NF staff. • If the LHD, DSHS, or TDEM recommend that all or part of the NF staff immediately leave the NF and self-isolate at home because they are ill, immediately notify the HHSC LTCR Associate Commissioner or the LTCR Director of Survey Operations.
Create an isolation wing/unit
• Identify a separate, well-ventilated area to use as an isolation area. This NF area should be an isolated wing, unit, or floor that provides meaningful separation between COVID-19 positive residents and the space where the facility cares for residents who are COVID-19 negative or untested and Exhibit J
asymptomatic. A curtain or a moveable screen does not provide meaningful separation. • When possible, use an area with an entrance separated from the rest of building. The isolation space should be separated so the essential NF personnel maintaining the building or providing services to residents in the isolation space are not required to go through areas where negative or asymptomatic residents are receiving care. • Provide hand hygiene areas as needed, including inside and outside of the entrance to isolation area when possible. • Provide separate spaces to don (put on) and doff (take off) PPE when possible. See attachment 9 about donning (putting on) and doffing (taking off) PPE, and attachment 8 about optimizing the use of facemasks and do’s and don’ts for facemask use. • When a single area is provided for donning and doffing PPE, these principals should be followed: o Provide for hand hygiene and adequate disposal of used PPE in the donning and doffing area o Only donning or doffing should occur at any given time – do not perform these activities at the same time o Only two people should be in the area at any time - use the buddy system to assure that donning and doffing is done correctly • Use a private bedroom with its own bathroom for each resident when possible. • Use a semi-private bedroom and cohort COVID-19 positive residents if necessary. If a resident with COVID-19 has another infectious disease that requires transmission-based precautions, they need to be in a single occupancy room. • House a resident in the same bedroom for their entire stay while in the isolation unit/wing when possible. • Limit resident transport and movement to medically essential purposes only. • Use dedicated HCW and staff for the isolation area. • Minimize traffic in and out of the isolation area. • Provide dedicated areas within the isolation area for HCW and staff use, including break rooms, medication rooms, and supply rooms. • Provide adequate staff with training, skills, and competencies for COVID- 19 care. • Provide dedicated and adequate PPE, supplies and equipment for use in the isolation area. • Train HCW and staff on proper use and maintenance of PPE per CDC guidance. • Use dedicated staff to provide meal service and cleaning in the isolation area. Exhibit J
• Transfer all of a resident’s personal belongings to the new bedroom in the isolation area, and ensure all belongings are disinfected before they are moved out of the isolation area.
HCW/staff leaving and entering isolation wing/unit
• Directly after entering the isolation area and prior to donning PPE, perform hand hygiene • Put on proper PPE • Perform hand hygiene before and after performing resident care • Directly before exiting the isolation area, remove PPE • Perform hand hygiene • Exit isolation area, and directly after leaving the isolation area, perform hygiene • Disinfect shoes per CDC instruction
Protect from infection
• Enact PPE plans • Determine PPE supplies • Screen residents/essential visitors • Contact other facilities where exposed individuals might have visited/worked • Consult with LHD or DSHS regarding testing • Limit staff in contact with infected or exposed
Care for residents who are infected
• Isolate residents who are infected • Identify cohorts with the same status (exposed, infected) • Determine level of required care • Determine if hospitalization and transport are required • Notify local health care/EMS • Track signs/symptoms • Work with your LHD or DSHS to establish a resident recovery plan, including when a resident is considered recovered and next steps for care.
Other
• Contact LHD/DSHS regional office/health authority (HA) • Ensure all relevant regulations/rules are followed • Notify families, staff, residents • Track tested, probable, positive, isolated, quarantined, hospitalized, and deaths • Activate emergency response command structure Exhibit J
• Identify specific points of contact (POCs) for communication with HHSC, local government, clinical staff, and press • Maintain central database of external contacts and phone numbers
Creating a voluntary isolation NF
• Identify NF location to use as an isolation facility • Identify service and supply vendors and notify them of anticipated operations start date. Example: Transportation, Oxygen Supply, Laundry, Hospice Agencies, ESRDs • Arrange for PPE supplies and HCW/staff training. • Discharge current residents to other NFs in the area if needed, working with residents and families, guardians, and local LTC Ombudsman. • Standard discharge requirements apply, and a resident’s rights are still protected. If current residents do not want to move to another NF, they are not required to move, and the facility should take all actions necessary to protect them from possible COVID-19 exposure. • Follow steps for establishing an isolation wing or unit if residents do not want to move. • When residents move, transfer all personal belongings to limit the risk of contamination. • Work with the LHD or DSHS to test residents per the testing strategy prior to moving them to other NFs. • Staffing considerations: • Provide additional training specific to caring for persons with COVID-19 • Provide additional PPE training • Provide meals to all employees to limit items brought into the facility and to limit them exiting the facility • Provide showers and changing area for the start and end of each shift • Increase housekeeping and laundry to accommodate increased needs in a COVID-19 positive environment • Use an off-site location for interviewing, and orientation of additional employees • Conduct twice daily COVID-19 conference calls 7 days a week to hear staff concerns and provide immediate support
[Note: Staff should not work in more than one zone.] HHSC ACTIONS
Prevent further disease spread
• Conduct Priority 1 Intake investigation • Review facility Infection Control Practices Exhibit J
• Determine if staff work at other facilities
Protect others from infection
• Review isolation precautions/plans • Determine if facility has sufficient PPE • Determine if facility has enacted screening for residents/staff • Determine if local quarantine order is in effect • Ensure contact of other facilities where exposed individuals are working
Care for residents who are infected
• Ensure appropriate isolation and quarantine • Ensure timely resident care • Ensure clinical support
Other
• Review all relevant rules/regulations with facility • Track tested, probable, positive, isolated, quarantined, hospitalized, and deaths • Identify POCs and maintain communication • Contact DSHS to review response activities • Perform focused COVID-19 ICAR onsite or tele-visit to provide support and enhance the NF’s ability to prevent or suppress any COVID-19 cases EXTERNAL ACTIONS
Texas COVID-19 Assistance Team - NF
• Testing • Resident Movement • Emergency Management • HAI • LHD • Resource Requests
DSHS
• Assessment • Initial Response • Onsite Coordination • Monitoring
DSHS, HHSC and TDEM Exhibit J
• Develop and implement testing plan Exhibit J
ATTACHMENT 2: SPICE Graphic SPICE for COVID-19
Surveillance • Sign and Symptoms • Temperature Checks • Residents/Staff/Visitors • Testing
Protection/Personal Protective Equipment • Clinical Staff • Support Staff • Patient • Supply/Burn-rate
Isolate • Patient(s) isolated • Staff Isolated • Others Isolated
Communicate • Administrator Contact #: • Local Health Department #: • Department of State Health Services #: • HHSC (TCAT)#: • Hospital Contact #:
Evaluate • Review 0-24-hour checklist • Prevent delay of critical actions • Communication plan Exhibit J
ATTACHMENT 3: Interim Guidance for Prevention, Management, and Reporting of Coronavirus Disease 2019 (COVID-19) Outbreaks in LTC Facilities Purpose
This document provides guidance to NFs, including nursing homes and SNFs, for the prevention, management, and reporting of Coronavirus Disease 2019 (COVID-19) outbreaks. Prompt recognition and immediate isolation of probable cases is critical to prevent outbreaks in residential facilities. Background
Because of their congregate nature and residents served (older adults often with underlying medical conditions), NF populations are at the highest risk of serious illness caused by COVID-19. Every effort must be made to prevent the introduction and spread of disease within these facilities.
People at high risk for developing severe COVID-19 include those who are 65 or older, immunocompromised (including cancer treatment), and have other high-risk conditions such as chronic lung disease, moderate to severe asthma and heart conditions.
People of any age with severe obesity or certain underlying medical conditions, particularly if not well controlled, such as diabetes, renal failure, or liver disease might also be at risk.
COVID-19 is most likely to be introduced into a facility by ill health care personnel (HCP) or visitors. Long-term care facilities should implement aggressive visitor restrictions and enforce sick leave policies for ill staff. Facilities must take the extreme action of restricting visitors except in compassionate care, such as end-of-life situations. Facilities must also restrict entry of non-essential personnel, and essential personnel should be screened for fever and symptoms before they enter the facility to begin their shift. Immediate Prevention Measures
Visitor restriction – On March 13, 2020, the Centers for Medicare and Medicaid Services (CMS) released a memorandum directing all NFs to restrict visitors except those deemed medically necessary. This is an important measure to prevent the introduction of the virus that causes COVID-19 into NFs. DSHS recommends all NFs restrict all non-essential visitation except in end-of-life care. Exhibit J
End-of-life care is the care given to people who have stopped treatment for their disease and whose death is imminent.
1. For people allowed in the facility (in end-of-life situations when death is imminent), instruct visitors before they enter the facility and residents’ rooms on hand hygiene, limiting surfaces touched, and use of PPE according to current facility policy while in the resident’s room. Screen visitors and exclude those with fever and/or symptoms. Decisions about visitation during an end-of- life situation should be made on a case-by-case basis. 2. Visitors who are allowed in the facility must wear a facemask while in the building and restrict their visit to the resident’s room or other location designated by the facility. Visitors who are not providing care to residents, such as visitors in end-of-life scenarios, can wear a cloth face cover instead of a facemask if no facemasks are available. 3. Facilities should communicate through multiple channels to inform people and non-essential health care personnel of the visitation restrictions, such as through signage at entrances/exits, letters, emails, phone calls, and recorded messages for receiving calls. 4. In lieu of visits, facilities should consider offering alternative means of communication for people who would otherwise visit. 5. When visitation is necessary or allowable (in end-of-life scenarios), facilities should make efforts to allow for safe visitation for residents and loved ones. a. Remind visitors to refrain from physical contact with residents and others while in the facility. Practice social distancing by not shaking hands or hugging and remaining 6 feet apart. b. If possible (pending design of building), create dedicated visiting areas near the entrance to the facility where residents can meet with visitors in a sanitized environment. Facilities should disinfect rooms after each resident- visitor meeting.
Advise visitors, and any person who entered the facility (hospice staff), to monitor for signs and symptoms of respiratory infection and coronavirus for at least 14 days after exiting the facility. If symptoms happen, advise them to self-isolate at home and immediately notify the facility of the date they were in the facility, the people they were in contact with, and the locations within the facility they visited. Facilities should immediately screen the people of reported contact and take all necessary actions based on findings.
Restrict non-essential personnel – Review and revise how the facility interacts with vendors and delivery personnel, agency staff, EMS personnel and equipment, transportation providers (when taking residents to offsite appointments, etc.), and other non-health care providers (food delivery, etc.). This should include taking necessary actions to prevent any potential transmission. For example, do not have Exhibit J
supply vendors bring supplies inside the facility. Instead, have vendors drop off supplies at a dedicated location, such as a loading dock.
Restrict non-essential personnel including volunteers and non-essential consultant personnel (barbers, delivery personnel) from entering the building.
Essential services such as dialysis, interdisciplinary hospice care, organ procurement, or home health personnel should still be permitted to enter the facility provided they are wearing all appropriate PPE and undergo the same fever and symptom screening process as facility staff. Facilities can allow entry of these essential visitors after screening.
Surveyors should not be restricted. CMS and state survey agencies are constantly evaluating their surveyors to ensure they don’t pose a transmission risk when entering a facility. For example, surveyors might have been in a facility with COVID- 19 cases in the previous 14 days, but because they were wearing PPE effectively per CDC guidelines, they pose a low risk to transmission in the next facility and must be allowed to enter. However, there are circumstances under which surveyors should still not enter, such as if they have a fever or any additional signs or symptoms of illness.
Making deliveries to residents at facilities – Families and other visitors can still deliver items (i.e., food and clothes) to residents at facilities. The facility would need to designate a place outside where deliveries can be left. Facility staff would retrieve the items, bring them inside, and disinfect them prior to delivering the items to the residents. Facilities should follow CDC guidance for appropriate disinfecting guidelines, depending on what the items are.
Active screening – The CDC and CMS recommend NFs screen all staff prior to entering the facility at the beginning of their shift for fever and symptoms consistent with COVID-19. Actively take their temperature and document absence of or shortness of breath, new or change in cough, and sore throat. If they are ill, have them put on a facemask, immediately leave the NF, and self-isolate at home.
Note: If the LHD, DSHS, or TDEM recommend that all or part of the NF staff immediately leave the NF and self-isolate at home because they are ill, immediately notify the HHSC LTCR Associate Commissioner or the LTCR Director of Survey Operations.
DSHS has created a template screening log for facility staff that is available on the DSHS website. Facilities should also screen any essential visitors who are permitted to enter the building, including visiting health care providers. Maintain a log of all visitors who enter the building that at minimum includes name, current contact information, and fever and presence/absence of symptoms. Exhibit J
Education – Share the latest information about COVID-19 and review CDC’s Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings.
Educate residents and families about COVID-19, actions the facility is taking to protect them and their loved ones (including visitor restrictions) and actions residents and families can take to protect themselves in the facility.
Educate and train health care personnel (HCP) and reinforce sick leave policies and adherence to infection prevention and control measures, including hand hygiene and selection and use of PPE. Have HCP demonstrate competency with putting on and removing PPE. Remind HCP not to report to work when ill.
Educate facility-based and consultant personnel (wound care, podiatry, barber) and volunteers. Including consultants is important because they often provide care in multiple facilities and can be exposed to or serve as a source of pathogen transmission.
Coordinate with your long-term care ombudsman to assist with education to residents and family members. To request help from an ombudsman statewide, call 1-800-252- 2412 or email [email protected]. Provide Supplies for Recommended Infection Prevention and Control Practices
• Hand hygiene supplies: • Put alcohol-based hand sanitizer with 60–95 percent alcohol in every resident room (ideally inside and outside of the room) and other resident care and common areas (outside dining hall, in therapy gym). • Make sure sinks are well-stocked with soap and paper towels for handwashing. • Respiratory hygiene and cough etiquette: • Make tissues and facemasks available for people who are coughing. • Consider designating staff to steward those supplies and encourage appropriate use by residents, visitors, and staff. • Make necessary PPE available in areas where resident care is provided. Put a trash can near the exit inside the resident room to make it easy for staff to discard PPE prior to exiting the room or before providing care for another resident in the same room. Facilities should have supplies of: • Facemasks • N95 respirators (if available and the facility has a respiratory protection program with trained, medically cleared, and fit-tested HCP) • Gowns • Gloves Exhibit J
• Eye protection (face shield or goggles). • See guidance in the section related to PPE use when caring for residents with COVID-19. • Consider implementing a respiratory protection program compliant with the OSHA respiratory protection standard for employees if not already in place. The program should include medical evaluations, training and fit testing. • Environmental cleaning and disinfection: • Make sure EPA-registered, hospital-grade disinfectants are available to allow for frequent cleaning and disinfection of high-touch surfaces and shared resident care equipment. • Refer to List N on the EPA website for EPA-registered disinfectants that have qualified under EPA’s emerging viral pathogens program for use against SARS-CoV-2. • High-touch surfaces include items like doorknobs, light switches, handrails, countertops - clean and disinfect frequently • Workstations include items like computers, chairs, keypads, common-use items - clean and disinfect frequently • Equipment includes items like blood pressure cuffs, hoyer lifts and other shared equipment used for resident care - clean and disinfect after each use Control Measures for Residents
Most of the actions that can be taken to prevent or control COVID-19 outbreaks in NFs are not new and include increasing hand hygiene compliance among staff, residents, and their families through education and on the spot coaching, as well as providing facemasks and hand hygiene supplies at the entrance to the facility. Additional critical control measures are listed below:
Monitoring - Ask residents to report if they feel feverish or have symptoms of respiratory infection and coronavirus. Actively monitor all residents upon admission and at least three times daily for fever and respiratory symptoms (including shortness of breath, new or change in cough, sore throat, and oxygen saturation). If the resident has fever or symptoms, implement recommended infection prevention and control (IPC) measures.
People with COVID-19 have had a wide range of symptoms reported – ranging from mild symptoms to severe illness. Symptoms may appear 2-14 days after exposure to the virus. People with these symptoms may have COVID-19:
• Fever or chills • Cough • Shortness of breath or difficulty breathing • Fatigue Exhibit J
• Muscle or body aches • Headache • New loss of taste or smell • Sore throat • Congestion or runny nose • Nausea or vomiting • Diarrhea
Isolation - Once a case of COVID-19 is identified in the facility, immediate action must be taken to isolate the resident who is positive for COVID-19 away from other residents.
Symptoms of COVID-19 can vary in severity. Initially, symptoms can be mild and not require transfer to a hospital if the facility can follow the infection prevention and control practices recommended by CDC. Residents with known or probable COVID-19 do not need to be placed into an airborne infection isolation room (AIIR) but should be placed in a private room with their own bathroom.
If a resident requires a higher level of care or the facility cannot fully implement all recommended precautions, the resident should be transferred to another facility capable of implementation. Transport personnel and the receiving facility should be notified about the probable diagnosis prior to transfer. While awaiting transfer, symptomatic residents should wear a facemask (if tolerated) and be separated from others (kept in their room with the door closed). Appropriate PPE should be used by health care personnel when encountering the resident.
Any roommates should be moved and monitored for fever and symptoms twice daily for 14 days. Room-sharing might be necessary if there are multiple residents with known or probable COVID-19 in the facility. As roommates of symptomatic residents might already be exposed, it is generally not recommended to separate them in this scenario. Public health authorities can assist with decisions about resident placement.
Create a plan for cohorting residents with symptoms of respiratory infection and coronavirus, including dedicating HCP to work only on affected units.
If the resident is transferred to a higher level of care, perform a final, full clean of the room, and use an EPA-registered disinfectant that has qualified under EPA’s emerging viral pathogens program for use against COVID-19. These products can be found on EPA’s List N.
Source control - Ill residents should wear a surgical mask when health care or other essential personnel enter the resident’s room. If the resident cannot tolerate a surgical mask, personnel who enter the room must wear N95 respirators, if available Exhibit J
and staff are fit-tested. Respiratory protection should be worn in addition to gown, gloves and face shield.
Ensure staff have been appropriately trained and fit-tested before using N95 respirators. See guidance in the section related to PPE use when caring for residents with COVID-19.
All residents who are not ill should wear a cloth face covering for source control whenever they leave their room or are around others, including whenever they leave the facility for essential medical appointments.
All residents who are ill should wear a facemask at all times as tolerated, except for when they are eating or drinking, taking medications, or performing personal hygiene like bathing or oral care.
If COVID-19 is identified in the facility, restrict all residents to their rooms and have HCP wear all recommended PPE for care of all residents (regardless of symptoms) on the affected unit (or facility-wide, depending on the situation). This includes: an N95 or higher-level respirator, eye protection, gloves, and gown. HCP should be trained on PPE use, including putting it on and taking it off.
Social distancing - Remind residents to practice social distancing and perform frequent hand hygiene. Social distancing means avoiding unnecessary physical contact and keeping a distance of at least 6 feet from other people. Cancel communal dining and all group activities, such as internal and external activities.
Bathing and showering - NFs experiencing a COVID-19 outbreak should restrict resident movement while the NF is investigating and taking actions to stop the spread of the virus. Residents with active signs and symptoms of respiratory illness or coronavirus should remain in their bedroom while being evaluated and treated. However, care services for other residents can be resumed once appropriate precautions have been implemented.
Ideally, residents with COVID-19 should be accommodated in a separate unit, with separate bathing or showering facilities, designated for care of individuals with COVID-19. If the separate unit does not have separate bathing of showering facilities, the NF should at least designate a bath/shower area that is separate from the ones used for residents who do not have COVID-19.
Alternately, the NF could use other strategies for ensuring resident safety while delivering care, including scheduling showering or bathing for residents with COVID- 19 at the end of the day so there would be less overlap with residents who do not have COVID-19. Exhibit J
NFs should continue to follow existing CDC recommendations for cleaning and disinfection of equipment and surfaces in shared spaces, like common shower rooms or equipment that must be shared between residents, between every resident use, using the appropriate EPA-approved products for COVID-19 prevention.
HCW should also be able to wear and maintain safe use of all recommended PPE while assisting residents with personal hygiene. Some PPE, including respirators and facemasks, could be compromised if they get wet.
Residents who can bathe independently - If a resident is able to shower independently, they should continue to do so.
Residents who need assistance to bathe - If a resident needs assistance with bathing and:
• the resident has COVID-19 and is symptomatic or asymptomatic, HCW must also be able to wear and maintain safe use of all recommended PPE while assisting residents with personal hygiene; or • the resident has recovered from COVID-19, per the test-based or non-test- based strategy (or otherwise), OR the resident has consistently tested negative and is asymptomatic, follow established policies and procedures for other care that requires close contact for bathing and showering.
Cleaning and disinfecting the bathing or shower area - If residents with COVID- 19 have access to a private bathroom or only share a bathroom with other residents who have the same COVID-19 status, the NF should clean and sanitize the bathroom frequently.
If the bathing or showering area is shared by both residents who have COVID-19 and those who don’t, clean and disinfect the area between every resident use.
Resident education - Educate residents and any visitors regarding the importance of handwashing. Assist residents in performing hand hygiene if they are unable to do so themselves. Education should also be provided to residents to cover their coughs and sneezes with a tissue, then throw the tissue away in the trash and wash their hands.
Resident testing - Inform residents that Governor Abbott has directed several agencies, including DSHS, HHSC, and TDEM, to test 100% of residents and staff in NFs for COVID-19. NFs will follow direction from DSHS, HHSC, and TDEM as they develop and implement a plan to test all residents and staff.
Residents who refuse testing for COVID-19 must be isolated for 10 days and monitored for signs and symptoms of respiratory illness and coronavirus. Staff should wear appropriate PPE when caring for residents who refuse testing. Residents who Exhibit J
refuse testing must not be cohorted with other residents who have tested positive for COVID-19 or other residents who have tested negative for COVID-19.
Recovery - Work with your LHD or DSHS to establish a resident recovery plan, including when a resident is considered recovered and next steps for care. A recovery plan is the guidance for determining when to discontinue transmission-based precautions and continued are of a resident. The recovery plan may be different depending on whether a test-based or non-test-based strategy is used. Criteria should include:
• Discontinuation of transmission-based precautions without testing. • Discontinuation of transmission-based precautions with testing. Control Measures for Staff
Active screening – The CDC and CMS recommend NFs screen all staff prior to entering the facility at the beginning of their shift for fever and other symptoms consistent with COVID-19. Actively take their temperature and document absence of or shortness of breath, new or change in cough, and sore throat. If they are ill, have them put on a facemask, immediately leave the NF, and self-isolate at home.
If the LHD, DSHS, or TDEM recommend that all or part of the NF staff immediately leave the NF and self-isolate at home because they are ill, immediately notify the HHSC LTCR Associate Commissioner or the LTCR Director of Survey Operations.
Staffing contingency plan – Develop a staffing contingency plan in case a large number of staff must self-quarantine or isolate because of potential exposure, being probable of, or positive for COVID-19. NFs must:
• have sufficient staff to provide nursing and related services - 40 TAC §19.1001 • have a system for preventing, identifying, and controlling infections and communicable diseases for all residents, including staff policies for the control of communicable diseases in employees and residents - 40 TAC §19.1601 • develop and maintain an emergency preparedness plan that is based on a facility-based and community-based risk assessment, utilizing an all- hazards approach, and includes emerging infectious disease - 42 CFR §483.73(a)
Hand hygiene - Reinforce the importance of hand hygiene among all facility staff, including any contract staff. Facilities can increase the frequency of hand hygiene audits and implement short in-service sessions on the proper technique for hand hygiene. Exhibit J
Ensure that supplies for performing hand hygiene are readily available and easily accessible by staff. Advise staff not to keep hand sanitizer bottles in their pockets. This practice causes hands and sanitizer bottles to become contaminated. Instead, consider keeping alcohol-based hand rub (ABHR) bottles in easily accessible areas, and mounting ABHR to the sides of carts (dining tray carts, wound care carts, medication carts, etc.).
Personal protective equipment (PPE) - Ensure the facility maintains an adequate supply of PPE and that all required PPE is easily accessible to staff entering resident rooms. For residents with COVID-19, CDC recommends staff adhere to standard and transmission-based precautions. If the facility does not have a supply of N95 respirators, facemasks should be worn for droplet protection. Follow the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings, which includes detailed information regarding recommended PPE.
Consider designating staff to steward these supplies and encourage appropriate use by staff and residents.
PPE and Infection Control Education and Training - Ensure staff are educated and trained on which PPE they should use, proper procedure for donning (putting on) and doffing (taking off) PPE, and how to determine if the PPE is contaminated or damaged.
NFs must identify whether the following concerns exist and specifically address them through education and training:
• Improper use of PPE • lack of understanding of proper use of each type of PPE • lack of fit-testing (see PPE Use When Caring for Residents with COVID-19) • lack of user seal check • Improper donning and doffing procedures • lack of understanding of appropriate donning and doffing sequence • safety and quality control measures • lack of appropriate donning and doffing locations • Cross contamination • lack of understanding of cold, warm and hot zones within a facility • cold zone - area with no COVID-19 infection present • warm zone - area used to monitor residents probable of COVID-19 infection • hot zone - area where COVID-19 infection is present Exhibit J
If the NF is following the CDC's or DSHS’ guidance for optimizing the supply of PPE, inform staff of the expectations specific to the type of PPE they are using. PPE education and training for staff should include at least the following information:
• PPE – simple, easy to understand training that includes: • use of PPE in a NF without a known positive case of COVID-19 • use of PPE in a NF with a probable or positive case of COVID-19 • donning and doffing sequence and procedures • Doffing PPE: How to Disinfect Your Shoes • procedures, if any, for optimizing the use of PPE • procedures for determining if the PPE is contaminated or soiled • procedures for disposal of PPE (contaminated or uncontaminated) • Infection Control – simple, easy to understand training that includes: • Concept of infection control zones including: • cold - clean or uncontaminated area • warm - potentially contaminated area • hot - contaminated area • understanding of how cross contamination occurs • Protocols, policies, and procedures for use during: • monitoring for COVID-19 • probable COVID-19 • confirmed COVID-19
Note: See attachment 9 about donning (putting on) and doffing (taking off) PPE, and attachment 8 about optimizing the use of facemasks and do’s and don’ts for facemask use. Review CDC Strategies for Optimizing the Supply of Facemasks and review the three levels of surge capacity.
Dedicated staff/COVID-19 response teams - Facilities can consider establishing COVID-19 care teams dedicated to the care of positive cases. These teams should be fit-tested for N95 respirators and prepared to provide an advanced level of care for cases if necessary, or until cases can be transferred to a higher level of care. COVID- 19 care teams can be implemented if not all staff can be trained and fit-tested for N95 respirators, or if supplies of N95 respirators are insufficient to equip the entire staff. See guidance in the section related to PPE use when caring for residents with COVID-19.
Restrict staff movement between facilities - Facilities should restrict the movement of staff between facilities, unless required in order to maintain adequate staffing at a facility. In those instances, staff should maintain the same designation by cohort status, in all facilities in which they work, and staff should not change designation from one facility to another, unless required in order to maintain adequate staffing for a given cohort. Exhibit J
Sick leave - Review and potentially revise sick leave policies. Staff who are ill must not come to work. Sick leave policies that do not penalize staff with loss of status, wages, or benefits will encourage staff who are ill to stay home.
Staff testing - Inform staff that Governor Abbott has directed several agencies, including DSHS, HHSC, and TDEM, to test 100% of residents and staff in NFs for COVID-19. NFs will follow direction from DSHS, HHSC, and TDEM as they develop and implement a plan to test all residents and NF staff.
Staff who refuse testing for COVID-19 must stop working, self-quarantine at home, and self-monitor for 14 days unless they provide proof of a negative PCR test.
Work exclusion – Staff who are confirmed or probable to have COVID-19 must stay at home. See below for guidance on when they may return to work.
Staff return to work – After being diagnosed with COVID-19, an employee can return to work per the guidance below.
• A test-based strategy is NO LONGER RECOMMENDED to determine when to allow health care personnel with COVID to return to work. • Health care personnel with severe to critical illness or who are severely immunocompromised can return to work 20 days after their positive test. • Health care personnel with mild to moderate illness can return to work 10 days after symptoms first appeared and at least 24 hours since their last fever.
After returning to work, HCP should:
• Wear a facemask for source control at all times while in the facility. A facemask instead of a cloth face covering should be used by these HCP for source control while in the facility. • A facemask for source control does not replace the need to wear an N95 or higher-level respirator (or other recommended PPE) when indicated, including when caring for residents with probable or confirmed COVID-19. • Of note, N95 or other respirators with an exhaust valve might not provide source control. • Both the provider and the employee must take all necessary measures to ensure the safety of everyone in the facility, including adhering to all infection control procedures such as hand hygiene, respiratory hygiene, and cough etiquette. • Be restricted from contact with severely immunocompromised residents (e.g., transplant, hematology-oncology) until 14 days after illness onset. • Self-monitor for symptoms and seek re-evaluation from occupational health if respiratory symptoms recur or worsen. Exhibit J
Note: If the employee was diagnosed with a different illness (e.g., influenza) and was never tested for COVID-19, base their return to work on the criteria associated with that diagnosis.
Environmental cleaning and disinfection – Increase environmental cleaning. Clean and disinfect all frequently touched surfaces such as doorknobs/handles, elevator buttons, bathroom surfaces/fixtures, remote controls and wheelchairs. Limit the sharing of personal items and equipment between residents. Provide additional work supplies to avoid sharing (pens, pads) and disinfect workplace areas (nurse’s stations, phones, internal radios, etc.).
Make sure EPA-registered hospital-grade disinfectants are available to allow for frequent disinfection of high-touch surfaces and shared resident care equipment. Properly clean, disinfect and limit sharing of medical equipment between residents and areas of the facility. Refer to List N on the EPA website for EPA-registered disinfectants that have qualified under EPA’s emerging viral pathogens program for use against COVID-19. Reporting COVID-19
All confirmed cases of COVID-19 must be reported to [the city health officer, county health officer, or health unit director having jurisdiction (in instances where there is no local health authority, report to DSHS) immediately.]
You can find contact information for your local/regional health department on the DSHS Local Health Entities website. Work with your local health department to complete the COVID-19 Case Report form if and when necessary.
NFs are also required to [report the first confirmed case of COVID-19 in staff or residents, and the first confirmed case of COVID-19 after a facility has been without cases for 14 days or more, to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 within 24 hours of the positive test.]
Submit a [Form 3613-A provider investigation] report to HHSC Complaint and Incident Intake through TULIP or by calling 1-800-458-9858 [within 5 days from the day a confirmed case is reported.]
[All deaths (COVID-19 and non-COVID-19) that occur in a NF, and those that occur within 24 hours after transferring a resident to a hospital from an NF, must be reported to HHSC through TULIP within 10 working days after the last day of the month in which the death occurred.]
Additionally, if the LHD, DSHS, or TDEM recommend that all or part of the NF staff immediately leave the NF and self-isolate at home because they are ill, immediately Exhibit J
notify the HHSC LTCR Associate Commissioner or the LTCR Director of Survey Operations.
In addition, CMS requires NF providers to report [the following weekly to the CDC via the National Healthcare Safety Network (NHSN):
• Suspected and confirmed COVID-19 cases among residents and staff, including residents previously treated for COVID-19; • Total deaths, including COVID-19 deaths among residents and staff; • Personal protective equipment and hand hygiene supplies in the facility; • Ventilator capacity and supplies in the facility; • Resident beds and census; • Access to COVID-19 testing while the resident is in the facility; and • Staffing shortages.]
Starting May 8, 2020, NFs must register with the CDC’s National Healthcare Safety Network (NHSN) for LTC facilities. Follow the guidance for LTCF COVID-19 Module Enrollment.
No later than 11:59 p.m. Sunday, May 17, 2020 NFs must submit their first set of data. To be compliant with the new requirement, facilities must submit the data through the NHSN reporting system at least once every seven days.
CMS also requires NFs to keep all residents and their representatives up to date on the conditions inside the facility, such as when new cases of COVID- 19 occur. Inform residents, their representatives, and families by 5 p.m. the next calendar day following the occurrence of a single confirmed infection of COVID-19 or three or more residents or staff with new-onset of respiratory symptoms occurring within 72 hours of each other. [Provide updates weekly, or sooner, when there are new COVID-19 cases, or three or more residents or staff with new-onset of respiratory symptoms.]
Follow the guidance in CMS QSO 20-29. Outbreak Management
If an outbreak of COVID-19 is probable or identified in your facility, strict measures must be put in place to halt disease transmission.
Outbreak definitions – A confirmed outbreak of COVID-19 is defined as one or more laboratory confirmed cases of COVID-19 identified in either a resident or paid/unpaid staff. All confirmed outbreaks will be reported to the LHD or PHR immediately, as well as to HHSC.
A probable outbreak is defined as one or more cases of respiratory illness within a one-week period without a positive test for COVID-19. Use the probable outbreak Exhibit J
definition if your facility is awaiting test results from either a resident or paid/unpaid staff. You are required to report probable outbreaks to your local health department, local health authority or DSHS pending COVID-19 test results. If you suspect a resident or staff member might have COVID-19, do not wait for test results to implement outbreak control measures.
If you have two or more residents or staff with similar symptoms, report to your local health authority as you would for any other cluster of illness. Maintain a low threshold of suspicion for COVID-19 as early symptoms can be non-specific and include atypical presentations such as diarrhea, nausea, and vomiting, among others.
Implement universal use of facemask for HCP while inside the facility. Follow the DSHS’ guidance for optimizing the supply of PPE when deciding how long staff should wear one facemask. Masks should be discarded upon exit, and a new mask should be worn upon reentry.
Homemade facemasks should only be used when all other options have been entirely exhausted and should only be used as source control. These masks are not considered protective.
Consider having HCP wear all recommended PPE for COVID-19 (gown, gloves, eye protection, N95 respirator) for the care of all residents, regardless of presence of symptoms. Implement protocols for extended use of eye protection and facemasks. Refer to DSHS’ strategies for optimizing the supply of PPE.
Restrict residents (to the extent possible) to their rooms except for medically necessary purposes. If they leave their room, residents should wear a facemask, perform hand hygiene, limit their movement in the facility, and keep a distance of 6 feet between themselves and other residents.
Implement protocols for cohorting [residents based on their COVID-19 status: COVID-19 positive, COVID-19 negative, and unknown COVID-19 status. NF providers should designate HCWs for each cohort and staff should not work with more than one cohort. Once staff are designated to work with a given cohort, staff should not change designation from one day to another, unless required in order to maintain adequate staffing for a cohort.] Consider designating entire units within the facility, with dedicated HCP, to care for known or probable COVID-19 cases. These HCP should be appropriately trained and fit-tested for N95 masks if at all possible. See guidance in section related to PPE use when caring for residents with COVID-19.
Movement and monitoring decisions for HCP with exposure to COVID-19 should be made in consultation with local public health authorities. To learn more, refer to the CDC’s Interim U.S. Guidance for Risk Assessment and Public Health Management of Exhibit J
Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease 2019.
Maintain a line list of all confirmed and probable COVID-19 cases within your facility. Include details such as name, date of birth, age, gender, whether staff or resident, room number or job description, date of symptom onset, fever, symptoms, and others. If your facility does not already have a line list template, you can find one on the DSHS website. PPE Use When Caring for Residents with COVID-19
HCW should wear an N95 respirator and all suggested PPE when caring for residents with COVID-19. If there is widespread COVID-19 infection in the building, staff should wear an N95 respirator and all suggested PPE when caring for residents.
Per the CDC, “all suggested PPE” includes:
• N95 respirator • eye protection • gloves • gown
If PPE supply is limited, implement strategies to optimize PPE supply, which might include extended use of respirators, facemasks, and eye protection, and limiting gown use to high-contact care activities and those where splashes or sprays are anticipated. Broader testing could be utilized to prioritize PPE supplies.
Cloth gowns - Follow manufacturer’s recommendations for cleaning and laundering, including the number of times the gown can be laundered and re-worn. This might differ by manufacturer and type of cloth gown. Immediately remove the gown to be laundered if it becomes soiled.
Certain types of gowns, sometimes called Level 1 or “minimal risk” gowns, do not provide protection from splashes/sprays of blood or body fluids, depending on the material the gown is made of. For these situations:
• Use a disposable, impervious isolation gown when a splash, spray, or cough might be expected. • If the NF does not have disposable, impervious isolation gowns, use a disposable plastic apron over the cloth gown in these situations.
The NF also should train staff on how to correctly don/doff any cloth or other alternative isolation gown; include a competency check. Exhibit J
Review the CDC’s Strategies for Optimizing the Supply of Isolation Gowns for more information.
N95 respirator fit testing - Under serious outbreak conditions in which respirator supplies are severely limited, HCW may not have the opportunity to be fit-tested on a respirator before using it. NFs should make every effort to ensure HCW who need to use tight-fitting respirators are fit-tested to identify the right respirator for the HCW. Under serious outbreak conditions, there may be limited availability of respirators or fit-test kits.
If NFs cannot fit-test HCW for N95 respirators, they should follow the NIOSH guidance for respirator use in a serious outbreak.
While it is not ideal, even without fit-testing, a respirator will provide better protection than a facemask or using no respirator at all. NFs should assist the HCW in choosing a respirator that fits best.
Even if HCW begin using respirators without proper fit-testing, NFs should make every effort to perform fit-testing as respirator supplies allow. NFs should always perform fit-testing for workers who cannot successfully seal check their own respirators.
HCW should review the following OSHA Respiratory Protection Training Videos:
• Respiratory Protection for Healthcare Workers • The Differences Between Respirators and Surgical Masks • Respirator Safety: Donning & Doffing • Respirator Types • Respirator Fit Testing • Maintenance and Care of Respirators • Medical Evaluations • Respiratory Protection Training Requirements • Voluntary Use of Respirators • Counterfeit and Altered Respirators: The Importance of NIOSH Certification
Review attachment 13, the “Three Key Factors Required for a Respirator to be Effective” infographic.
NFs should document that the HCW has reviewed the OSHA respiratory protection training videos.
User Seal Check - HCW wearing tight-fitting respiratory protection should perform a user seal check each time they put on their respirator. A fit test ensures that the respirator fits and provides a secure seal. A user seal check ensures that it’s being worn right each time. Exhibit J
HCW can either perform a positive-pressure or negative-pressure seal check:
• A positive-pressure check is accomplished by covering the respirator surface on a filtering facepiece (N95) and trying to breathe out. Cover the surface using your hands. If slight pressure builds up, that means air isn’t leaking around the edges of the respirator. • A negative-pressure check is accomplished by covering the respirator surface on a filtering facepiece N95) and trying to breathe in. Cover the surface using your hands. If no air enters, the seal is tight.
The seal check method may vary by manufacturer and model and will be described in the user instructions. HCW should follow the PPE manufacturer’s instructions and recommendations for the proper use, donning, doffing, and user seal check of the N95 respirator.
Review attachment 10, the “User Seal Check” infographic. Exhibit J
Glossary of Acronyms in Alphabetical Order
1. ABHR – Alcohol-based hand rub 2. AIIR – Airborne infection isolation room 3. CDC – The Centers for Disease Control and Prevention 4. CFA – Comprehensive functional assessment 5. CMS – The Centers for Medicare and Medicaid Services 6. CNA – Certified nursing aide 7. DSHS – Texas Department of State Health Services 8. EMS – Emergency medical services 9. EPA – Environmental Protection Agency 10.HA – Health authority 11.HAI – Health care associated infection 12.HCP – Health care personnel 13.HCW – Healthcare worker 14.HHSC – Texas Health and Human Service Commission 15.ICAR – Infection control assessment and response tool 16.IPC – Infection prevention and control 17.LHA – Local health authority 18.LHD – Local health department 19.LSC – Life safety code 20.LTC – Long-term care 21.LTCF – Long-term care facility 22.LTCR – Long-term Care Regulat[ion] 23.LVN – Licensed vocational nurse 24.MDS – Minimum data set 25.NHSN National Healthcare Safety Network 26.NIOSH – The National Institute for Occupational Safety and Health 27.NF – Nursing facility 28.OSHA – Occupational Safety and Health Administration 29.PASRR – Pre-admission screening and resident review 30.POC – Point of contact 31.PPE – Personal protective equipment 32.QAPI – Quality Assurance and Performance Improvement 33.RA-QRF – Rapid Assessment Quick Response Force 34.RN – Registered nurse 35.SME – Subject matter expert 36.SNF – Skilled nursing facility 37.TCAT – Texas COVID-19 Assistance Team 38.TDEM - Texas Division of Emergency Management Exhibit J
List of Referenced Resources
ASPR TRACIE
COVID-19 Workforce Virtual Toolkit
Nursing Home Concepts of Operations for Infection Prevention and Control CDC
CDC LTC Webinar Series:
• Clean Hands • Closely Monitor Residents • Keep COVID-19 Out • PPE Lessons • Sparkling Surfaces • Cleaning and Disinfecting Your Facility
Considerations for Memory Care Units in Long-term Care Facilities
Discontinuation of Transmission-Based Precautions and Disposition of Patients with COVID-19 in Healthcare Settings (Interim Guidance) – updated 07/16/2020
Doffing PPE: Disinfect Your Shoes
Infection Prevention and Control Assessment Tool for Nursing Homes Preparing for COVID-19
Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings - Includes PPE Recommendations – updated 07/09/2020
Interim U.S. Guidance for Risk Assessment and Work Restrictions for Healthcare Personnel with Potential Exposure to COVID-19 -updated 06/18/2020
Key Strategies to Prepare for COVID-19 in Long-term Care Facilities - updated 06/25/2020
LTCF COVID-19 Module Enrollment (NHSN)
National Healthcare Safety Network (NHSN)
Performing Facility-wide SARS-CoV-2 Testing in Nursing Homes Exhibit J
Preparing for COVID-19: Long-term Care Facilities, Nursing Homes -updated 06/25/2020
Responding to Coronavirus (COVID-19) in Nursing Homes
Strategies to Optimize the Supply of PPE and Equipment -updated 07/10/2020
Strategies for Optimizing the Supply of Facemasks -updated 06/28/2020
Strategies for Optimizing the Supply of Isolation Gowns
Strategies to Mitigate Healthcare Personnel Staffing Shortages
Symptoms of Coronavirus
Testing for Coronavirus (COVID-19) in Nursing Homes -updated 07/02/2020 CMS
CMS’ April 2, 2020 Guidance CMS Blanket (1135) Waivers
QSO 20-14 Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes
QSO 20-26 Upcoming Requirements for Notification of Confirmed COVID-19 (or COVID-19 Persons under Investigation) Among Residents and Staff in Nursing Homes
QSO 20-29 Interim Final Rule Updating Requirements for Notification of Confirmed and Suspected COVID-19 Cases Among Residents and Staff in Nursing Homes DSHS
DSHS COVID-19 LTC Facility Staff Symptom Monitoring Log
DSHS Local Health Entities
Information on PPE
Line List Template
Strategies for Optimizing the Supply of PPE EPA
List N: Disinfectants for Use Against SARS-CoV-2 Exhibit J
HHS
The Difference Between Isolation and Quarantine HHSC
CII – Reporting to HHSC
Helping Residents with Dementia Prevent the Spread of COVID-19 in LTC Communities
LTCR Regional Contact Information
TULIP NIOSH
Proper N95 Respirator Use for Respiratory Protection Preparedness - includes respirator use during a serious outbreak condition
User Seal Check - N95 respirator OOG
Governor Abbot’s Executive Orders OSHA
OSHA Respiratory Protection Training Videos, including:
• Respiratory Protection for Healthcare Workers • The Differences Between Respirators and Surgical Masks • Respirator Safety: Donning & Doffing • Respirator Types • Respirator Fit Testing • Maintenance and Care of Respirators • Medical Evaluations • Respiratory Protection Training Requirements • Voluntary Use of Respirators • Counterfeit and Altered Respirators: The Importance of NIOSH Certification • OSHA Respiratory Protection Standard (29 CFR §1910.134) Exhibit J
ATTACHMENT 4: Comprehensive Mitigation Plan
Comprehensive Mitigation Plan - NF Without COVID-19 Positive Cases
1. Keep COVID-19 from entering your facility: a. Restrict all visitors except for compassionate care situations (end-of- life). b. Restrict all volunteers and non-essential HCP, including consultant services (e.g., barber, hairdresser). c. Implement universal use of source control for everyone in the facility. d. Actively screen anyone entering the building. e. Cancel all group activities. 2. Identify infections early: a. Actively screen all residents for fever and symptoms of COVID-19 at least each shift b. If symptomatic, immediately isolate and implement appropriate Transmission-Based Precautions. i. Older adults with COVID-19 may not show typical symptoms such as fever or respiratory symptoms. ii. Atypical symptoms may include new or worsening malaise, new dizziness, or diarrhea. Identification of these symptoms should prompt isolation and further evaluation for COVID-19. c. Notify LHD or DSHS immediately (<24 hours) if these occur: i. Severe respiratory infection causing hospitalization or sudden death ii. Clusters (≥3 residents and/or HCP) of respiratory infection iii. Individuals with probable or confirmed COVID-19 3. Prevent spread of COVID-19: a. Actions to take now: i. Cancel all group activities and communal dining. ii. Enforce social distancing among residents. iii. Ensure all residents wear a cloth face covering for source control whenever they leave their room or are around others, including whenever they leave the facility for essential medical appointments. iv. Ensure all HCP wear a facemask while in the facility. 4. Assess supply of personal protective equipment (PPE) and initiate measures to optimize current supply: a. If you anticipate or are experiencing PPE shortages, reach out to the LHD or DSHS. b. Consider extended use of respirators, facemasks, and eye protection or prioritization of gowns for certain resident care activities. 5. Identify and manage severe illness.
Comprehensive Mitigation Plan - NF with COVID-19 Positive Cases Exhibit J
Determine exactly what level of infection exists at the NF and implement a comprehensive mitigation plan. Work with LHD or DSHS to ensure that test kits are available, and that testing is conducted quickly and efficiently. After the first positive test of a NF staff member or resident, test all residents and staff of the facility for COVID-19. NFs with current positive cases and that have not done comprehensive testing must conduct an assessment of their current infection levels. Test all NF staff and residents who were either not previously tested or were tested previously but are now exhibiting symptoms of COVID-19.
Design and implement a comprehensive mitigation plan. The mitigation plan must address the specific level of infection that is discovered in the NF and include specific actions to accomplish the following:
• Upon the first positive test result of a NF staff member or resident, work with local health authorities, DSHS, and HHSC to coordinate testing of nursing facility staff and residents. • Isolate residents who are COVID-19 positive in the most effective manner available. Consider a transfer to a different facility (possibly a COVID Positive dedicated facility) or move them to a COVID isolation wing of the facility. • Limit transport and movement of residents who are COVID-19 positive to isolation or medically essential purposes only. • Move residents who are not COVID-19 positive to areas within the NF designated for their care. • Staff who are confirmed to have COVID-19 must stay at home and may only return to work in accordance with the CDC or DSHS Return to Work for Healthcare Personnel with Confirmed or Suspected COVID-19 guidance. • Require facility staff to only work in one facility at a time. • Take immediate measures to inform all who interact (or may have recently interacted) with the NF of the positive result(s) so that further limitations can be enacted to control the spread of infection to family or other service providers. Follow CDC, CMS and DSHS guidance, and this NF COVID-19 Response Plan. • Implement enhanced cleaning and disinfection techniques. • Limit all unnecessary visitation. • To assist in controlling infection, limit access to the facility to designated entrances only. • Implement enhanced screening techniques Exhibit J
ATTACHMENT 5: Infographic - Facility Actions for COVID-19 Response
Exhibit J Exhibit J ATTACHMENT 6: DSHS Healthcare Personnel Return to Work Strategies - Updated May 5, 2020 NOTE: This graphic is being updated. Please see guidance on page 41.
Exhibit J
Exhibit J ATTACHMENT 7: Discontinuation of Transmission-Based Precautions and Disposition of Residents with COVID-19 NOTE: This graphic is being updated. Please see CDC guidance. Exhibit J
ATTACHMENT 8: CDC Guidance - Optimization of Facemasks Infographic and Do’s and Dont's for Facemask Use Infographic
Exhibit J
Example of a damaged facemask.
Exhibit J
Exhibit J
ATTACHMENT 9: PPE Donning and Doffing Infographic
Exhibit J
Exhibit J
Exhibit J
ATTACHMENT 10: User Seal Check – Infographic
Exhibit J
Exhibit J
ATTACHMENT 11: RA-QRF Deployment Process
Exhibit J
ATTACHMENT 12: RA-QRF Testing and Notification Exhibit J
ATTACHMENT 13: Three Key Factors Required for a Respirator to be Effective - Infographic
Exhibit J
ATTACHMENT 14: Isolation Unit
Exhibit J
Exhibit J
Exhibit J
ATTACHMENT 15: Symptom Monitoring Log
Click HERE for Source Document
Exhibit J
ATTACHMENT 16: Tracking Line List
Click HERE for Source Document