SENATE BILL NO. 400

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 2253 and 5145 (MCL 333.2253 and 333.5145), section 2253 as amended by 2022 PA 274 and section 5145 as amended by 2020 PA 311.

the people of the state of michigan enact:

Sec. 2253. (1) Subject to subsections subsection (4), and (5), if the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may make a declaration of that determination and may within that emergency order prohibit the gathering of people for any purpose and establish procedures to be followed during the epidemic to ensure continuation of essential public health services and enforcement of health laws. Emergency procedures are not limited to this code.

(2) If an epidemic described in subsection (1) involves avian influenza or another virus or disease that is or may be spread by contact with animals, the department of agriculture and rural development shall cooperate with and assist the director in the director's response to the epidemic.

(3) On request from the director, the department of agriculture and rural development shall assist the department in any review or update of the department's pandemic influenza plan under section 5112.

(4) Beginning June 1, 2023, an emergency order issued under subsection (1) may prohibit or otherwise limit any visitation of a patient or resident in a qualified health care facility for a period not to exceed 30 days after the date the director first declares that control of the epidemic is necessary to protect the public health.

(4) (5) Beginning June 1, 2023, because LINDA, after 30 days after if the director first declares that control of an epidemic is necessary to protect the public health in an emergency order issued under subsection (1), all of the following apply:

(a) Subject to subdivision (b), the emergency order must not prohibit or otherwise limit a patient representative from visiting a patient or resident with a cognitive impairment in a qualified health care facility.

(b) The emergency order may do limit visitation of a patient or resident in a qualified health facility by any of the following:

(i) Implement Implementing reasonable safety measures before or during a patient representative's visit to a patient or resident with a cognitive impairment in the qualified health care facility, including, but not limited to, prescreening or testing a patient representative, imposing a visit duration on a patient representative, restricting the number of patient representatives who may visit at 1 time, and requiring a patient representative to preschedule a visit.

(ii) Establish Establishing procedures for the visitation of a patient or resident with a cognitive impairment in a qualified health care facility, if the director determines that establishing the procedures is vital to maintaining a safe health care infrastructure in this state. The director shall consult with qualified health care facilities before establishing procedures under this subparagraph.

(5) (6) As used in this section:

(a) "Assisted living facility" means an unlicensed entity that offers community-based residential care for at least 3 unrelated adults who are 65 years of age or older or who need assistance with activities of daily living that are available 24 hours a day, including, but not limited to, personal, supportive, or intermittent health-related services.

(b) "Cognitive impairment" means a deficiency in the patient's or resident's mental capability or loss of intellectual ability, either of which affects the patient's or resident's comprehension, decision-making, reasoning, adaptive functioning, judgment, learning, or memory and that materially affects the patient's or resident's ability to function. A cognitive impairment may be a temporary short-term change in cognition, a medically induced change in cognition, or a long-term ongoing change in cognition.

(b) (c) "Family member" means an individual related to a patient or resident by blood, marriage, or adoption who is within the fifth degree of kinship to the patient or resident.

(d) "LINDA" means loved individuals need dedicated attention.

(c) (e) "Patient representative" means any of the following:

(i) A family member.

(ii) A patient advocate as that term is defined in section 1106 of the estates and protected individuals code, 1998 PA 386, MCL 700.1106.

(iii) An individual who is named as the attorney-in-fact under a durable or nondurable power of attorney for the patient or resident.

(d) (f) "Qualified health care facility" means any of the following:

(i) A health facility or agency as that term is defined in section 20106.

(ii) An assisted living facility.

(iii) A physician's private practice office.

Sec. 5145. (1) The department, in consultation with the department of licensing and regulatory affairs, shall do all of the following:

(a) By November 15, 2020, develop and submit a report to the house and senate standing committees on health policy that is based on relevant guidance issued by the federal Centers for Disease Control and Prevention and incorporates recommendations from the Michigan nursing homes COVID-19 preparedness task force. The report must include, but is not limited to, a description of any updates to the final recommendations of the Michigan nursing homes COVID-19 preparedness task force in its report dated August 30, 2020, the status on implementing the recommendations, and a description of any barriers to implementing the recommendations. The department may use health care systems and hospital capacity data when preparing the report. The report must also address each of the following quality-of-life recommendations from the task force report described in this subdivision:

(i) Outdoor visits.

(ii) Small-group noncontact activities.

(iii) Communal dining for residents.

(iv) Indoor visitation participation opt-in.

(v) Resident small-group "pod" opt-in.

(vi) Increased virtual visitation opportunities.

(vii) Staff access to creative engagement ideas.

(viii) Support for meaningful engagement activities.

(ix) Ancillary service providers.

(x) Visitation volunteers.

(xi) Off-campus health and wellness visits.

(xii) Window visits.

(b) By November 15, 2020, implement a statewide policy for nursing homes on providing in-person indoor and outdoor visitations to all nursing home residents. The department shall post a copy of the policy on the department's publicly available website and post any updates to the policy within 48 hours after making the updates. The department shall also provide a copy of the policy to the house and senate standing committees on health policy. The policy may limit in-person indoor and outdoor visitations for a nursing home resident who tests positive for coronavirus, if a nursing home is experiencing an outbreak of coronavirus, or if a community is experiencing an outbreak of coronavirus.

(c) By November 15, 2020, develop and submit a report to the house and senate standing committees on health policy on the department's plans to identify laboratories that will process and prioritize coronavirus diagnostic tests from nursing homes. The report must include the department's plans for issuing requests for proposals that include a provision requiring a successful bidder to be able to process a high volume of tests, including, but not limited to, rapid testing for coronavirus and provide expedited results.

(d) By November 15, 2020, implement a process for the creation of care and recovery centers within nursing homes for the purpose of providing care to individuals who have tested positive for coronavirus who have not met the criteria for the discontinuation of transmission-based precautions from the federal Centers for Disease Control and Prevention. The department shall require a nursing home seeking to operate a care and recovery center to apply to the department on a form provided by the department and meet all of the following requirements:

(i) Demonstrate each of the following to the department:

(A) That the nursing home has at least an overall rating of 3 stars or a 3-star rating in the staffing category, based on the Five-Star Quality Rating System established by the federal Centers for Medicare and Medicaid Services.

(B) That the nursing home is not operating under a denial of payment for new admissions under 42 CFR 488.417.

(C) That the nursing home is not designated on the Nursing Home Compare website of the federal Centers for Medicare and Medicaid Services as a "red hand facility", indicating a citation for abuse.

(D) That the nursing home meets physical plant capacity to designate a distinct area within the nursing home for individuals who have tested positive for coronavirus.

(E) That the nursing home has dedicated staff for the sole purpose of treating individuals in the care and recovery center.

(ii) Agrees to comply with any facility requirements that the department considers appropriate to prevent the spread of coronavirus in nursing homes, including, but not limited to, infection control safeguards, personal protective equipment, testing for coronavirus, and operational capacity.

(iii) Agrees to comply with all of the following if an individual tests positive for coronavirus and needs to be transferred to a care and recovery center or other location described in this section:

(A) Provide a notice to the individual; if applicable, the individual's legal representative; and, if the individual consents, the individual's emergency contact.

(B) That a physician, a nurse practitioner, or a physician's assistant shall provide, in writing and in a time frame and manner determined by the department, that the individual is medically stable for the transfer.

(iv) Any other requirement established by the department in consultation with the department of licensing and regulatory affairs.

(e) By November 15, 2020, implement a process for the approval of designated areas within nursing homes for individuals who test positive for coronavirus. The department shall require a nursing home seeking to establish a designated area within its facility to apply to the department on a form provided by the department and meet all of the following requirements:

(i) Demonstrate each of the following to the department:

(A) That the nursing home has a program for retaining and providing the appropriate level of care necessary for individuals who test positive for coronavirus and that the program has an adequate supply of personal protective equipment and adequate testing capabilities, dedicated staffing, and operational capacity at the time of an individual's diagnosis.

(B) That the nursing home's designated area meets proper infection control safeguards.

(C) That there is no longer capacity at a care and recovery center and additional facilities are needed for individuals who test positive for coronavirus, unless the department determines that there are rare and unique circumstances that must be taken to protect the health and safety of an individual.

(ii) Agrees to continually evaluate and ensure its ability to meet each requirement for the approval of a designated area under this subdivision.

(iii) Any other requirement established by the department in consultation with the department of licensing and regulatory affairs.

(2) As used in this section, "coronavirus" means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).