Michigan law imposes on the Michigan Department of Health and Human Services (MDHHS) a duty to continually and diligently endeavor to “prevent disease, prolong life, and promote public health,” and gives the Department “general supervision of the interests of health and life of people of this state.” MCL 333.2221. MDHHS may “[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers and duties vested by law in the department.” MCL 333.2226(d).
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine for this disease. COVID-19 spreads through close human contact, even from individuals who may be asymptomatic.
In recognition of the severe, widespread harm caused by epidemics, the Legislature has granted MDHHS specific authority, dating back a century, to address threats to the public health like those posed by COVID-19. MCL 333.2253(1) provides that “[i]f the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Emergency procedures shall not be limited to this code.” See also In re Certified Questions, Docket No. 161492 (Viviano, J., concurring in part and dissenting in part, at 20) (“[T]he 1919 law passed in the wake of the influenza epidemic and Governor Sleeper’s actions is still the law, albeit in slightly modified form.”); id. (McCormack, C.J., dissenting, at 12). Enforcing Michigan’s health laws, including preventing disease, prolonging life, and promoting public health, requires limitations on gatherings and the establishment of procedures to control the spread of COVID-19. This includes limiting the number, location, size, and type of gatherings, and requiring the use of mitigation measures at gatherings as a condition of hosting such gatherings.
On March 10, 2020, MDHHS identified the first two presumptive-positive cases of COVID-19 in Michigan. As of December 2, 2020, Michigan had seen 373,197 confirmed cases and 9,405 confirmed deaths attributable to COVID-19. Daily new cases are now near 5,000 which is nearly three times higher than what was seen in the spring. Over 4,000 Michiganders are presently hospitalized for COVID-19.
To protect vulnerable individuals, ensure the health care system can provide care for all health issues, and prevent further spread during the influenza season, we must reduce the spread of COVID-19. This necessitates use of more forceful mitigation techniques to reduce the spread of the virus. As such, it is necessary to issue orders under the Public Health Code addressing these topics.
Considering the above, and upon the advice of scientific and medical experts, I have concluded pursuant to MCL 333.2253 that the COVID-19 pandemic continues to constitute an epidemic in Michigan. I have also, subject to the grant of authority in 2020 PA 238 (signed into law on October 22, 2020), herein defined the symptoms of COVID-19 based on the latest epidemiological evidence.
I further conclude that control of the epidemic is necessary to protect the public health and that it is necessary to restrict gatherings and establish procedures to be followed during the epidemic to ensure the continuation of essential public health services and enforcement of health laws. As provided in MCL 333.2253, these emergency procedures are not limited to the Public Health Code.
I therefore order that:
(1) Limit communal dining and internal and external group activities consistent with the Center for Medicare and Medicaid Services guidance included in QSO-20-39-NH (issued on September 17, 2020);
(2) Inform employees and residents of the presence of a confirmed COVID-19 positive employee or resident as soon as reasonably possible, but no later than 12 hours after identification;
(3) As soon as reasonably possible, but no later than 24 hours after identification of a confirmed COVID-19 positive employee or resident:
(4) Timely notify employees of any changes in CDC recommendations related to COVID-19;
(5) Keep accurate and current data regarding the quantity of each type of Appropriate PPE available onsite, and report such data to EMResource upon MDHHS’s request or in a manner consistent with MDHHS guidance; and
(6) Report to this Department all presumed positive COVID-19 cases in the facility together with any additional data when required under MDHHS guidance.
(1) Contact the local health department in the facility’s jurisdiction to report the presence of a confirmed COVID-19 positive employee or resident; and
(2) Support and comply with contact tracing efforts as requested.
(1) The facility has had no new COVID-19 cases originate in the facility, including those involving residents or staff (“facility-onset cases”), within the prior 14 days and is not currently conducting outbreak testing. Admission of a resident who is known to be COVID-19-positive at the time of admission does not constitute a facility-onset case;
(2) The facility is in a county where the current Risk Level on the MI Safe Start Map is Low, A, B, C, or D with the exception of outdoor visits which are permitted in counties where the current Risk Level is E;
(3) The local health department or the department has not prohibited visitation at the facility.
(4) Visitors are subject to the testing requirements in section 3.
(1) Permit visits by appointment only. Facilities may impose reasonable time limits on visits and must require that visitors log arrival and departure times, provide their contact information, and attest, in writing, that they will notify the facility if they develop symptoms consistent with COVID-19 within 14 days after visiting;
(2) Limit the number of visitors per scheduled visit to two persons or fewer at any given time;
(3) In facilities with a MDHHS-required resident and staff testing regimen, require the testing of visitors, in accordance with section 3 of this order;
(4) Exclude visitors who are unwilling or unable to wear a face covering for the duration of their visit or follow hand hygiene requirements, and instead encourage those persons to use video or other forms of remote visitation. Further, require visitors to wear Appropriate PPE, and comply with the facility’s visitor PPE requirements based on their infection control protocols;
(5) Limit visitor entry to designated entrances that allow proper COVID-19 screening;
(6) Perform a health evaluation of all visitors each time the visitor seeks to enter the facility, and deny entry to visitors who do not meet the evaluation criteria. Screenings must include tests for fever (≥100.4°F), other symptoms consistent with COVID-19, and known exposure to someone with COVID-19. Facilities must restrict anyone with fever, symptoms, or known exposure from entering the facility;
(7) Post signage at all visitor entrances instructing that visitors must be assessed for symptoms of COVID-19 and may be required to test before entry, and instruct persons who have symptoms of COVID-19 to not enter the facility;
(8) Require that visitors follow physical distancing requirements and refrain from any physical contact with residents and employees, except that:
(9) Make hand sanitizer and/or hand washing facilities safely available to visitors, and post educational materials on proper hand washing and sanitization;
(10) Ensure availability of adequate staff to assist with the transition of residents, monitoring of visitation, and for cleaning to disinfect surfaces in the visitation areas after each visit;
(11) Educate visitors on additional personal protective equipment (PPE) use requirements for visitors beyond a face covering, if any. The facility must supply the visitor with the additional PPE. Entry may not be denied based on a visitor not having the additional PPE required by the facility;
(12) Disallow visitation during aerosol-generating procedures or during collection of respiratory specimens unless deemed necessary by staff for the care and well-being of the resident;
(13) Restrict visitor movement within the facility to reduce the risk of infection;
(14) Make accommodations to support visitation for residents who share a room with another resident. Visits for residents who share a room shall not be conducted in the resident’s room.
(15) Make available an employee or volunteer trained in infection control measures at all times during the visit. This individual is not required to supervise a visit, but must be available for questions;
(16) Limit the number of overall visitors at the facility in any given time based upon limited space, infection control capacity, and other necessary factors to reduce the risk of transmission;
(17) Advise residents and visitors to not share food;
(18) Communicate with residents and their families to inform them of updated visitation protocols;
(19) Prohibit visits to residents who are in isolation or are otherwise under observation for symptoms of COVID-19.
(1) The outdoor visitation area allows for at least six feet between all persons. Tables are recommended as a barrier to ensure proper physical distancing. Marked areas and signage may be necessary to inform visitors of expectations. Tables and chairs must be disinfected after each use;
(2) The outdoor visitation area provides adequate protection from weather elements (e.g., shaded from the sun);
(1) Window visits when a barrier is maintained between the resident and visitor. Accommodations shall be made for residents without access to ground floor window or a window that does not open to an area accessible to the visitor. Accommodations may include utilizing a visitation room or space with a window or door access to a visitor.
(2) A parent, foster parent, or guardian of a resident who is 21 years of age or under.
(3) Visits that support Activities for Daily Living (ADL) or visits that are necessary to ensure effective communication with individuals with hearing, vision or speech impairments. Facilities with residents that had ADL arrangements prior to March 14, 2020, or residents that have had a change of condition that could be improved with ADL arrangements, must attempt to contact the resident’s next of kin or an individual identified by the resident in partnership with the local ombudsman to establish arrangements. Except in circumstances where the visitor tests positive for COVID-19, facilities that deny visitation under this section must provide written notice to the visitor with an explanation of why visitation is being denied. The denial notice must also be sent to MDHHS and the LTC ombudsman.
(4) Visits, including those by clergy, that occur when a resident is in serious or critical condition or in hospice care. Except in circumstances where the visitor tests positive for COVID-19, facilities that deny visitation under this section must provide written notice to the visitor with an explanation of why visitation is being denied. The denial notice must also be sent to MDHHS and the LTC ombudsman.
(5) Medical service providers such as hospice providers, podiatrists, dentists, durable medical equipment providers, social workers and other behavioral health providers, speech pathologists, occupational therapists, physical therapists, and other health care providers, including resident physicians and clinical students. These services must be provided outdoors or in a well-ventilated area whenever possible. If services must be provided indoors, the facility must restrict movement within the facility to the greatest extent possible to reduce the risk of infection.
(1) Non-medical service providers, such as hairdressers, nail salon technicians, cosmetologists, and providers of religious or spiritual services, when it is determined by a qualified medical professional that there will be an actual or potential negative impact on the resident when the service is not provided, and the resident will not benefit from remote service delivery. These services may be provided to residents who have never been diagnosed with COVID-19, or who are no longer in the infectious period for COVID-19 per CDC guidance. These services must be provided outdoors or in a well-ventilated area whenever possible. If services must be provided indoors, the facility must restrict movement within the facility to the greatest extent possible to reduce the risk of infection.
(2) Volunteers who have been trained in infection control measures and are supporting visitation (e.g. scheduling visits, conducting screening of visitors, escorting visitors or residents to visitation location, and/or monitoring visits for infection control compliance).
(1) Testing shall not be required prior to visits under subsections 2(e)(1) and visits at the End of Life.
(2) Testing requirements for visitors under subsections 2(e)(5) and 2(f)(1)-(2) must be the same as for similar staff working in the facility.
(3) For visitors under subsections 2(e)(2)-(4), testing shall be required prior to indoor visitation for facilities in counties where the current Risk level is C, D, or E on the MI Safe Start Map.
This Order is effective immediately.
Date: December 8, 2020
Robert Gordon, Director
Michigan Department of Health and Human Services