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In the wake of the Michigan Supreme Court’s opinion in Midwest Inst of Health, PLLC v Governor of Michigan  (In re Certified Questions from the United States Dist Court), No 161492, ___ Mich ___, ___ NW2d ___ (Oct 2, 2020), Governor Whitmer’s COVID-19 executive orders promulgated under the Emergency Powers of the Governor Act of 1945, including orders governing visitation in residential care facilities, are no longer effective. On October 21, 2020, the Michigan Department of Health and Human Services (MDHHS) issued an order, effective October 26, 2020, and amended slightly on December 8, 2020, under the Public Health Code setting out protocols for visitation to address the threat to public health caused by COVID-19. The order remains in effect until lifted. This order rescinds and replaces an order issued on October 6, 2020. The noteworthy changes to the prior order are the implementation of COVID-19 testing before visitation in certain facilities and for certain visitors. See these infographics on general visitation and visitation in special cases. Here are the highlights of the order:

COVID-19 testing. COVID-19 testing is required before any indoor visitation in facilities in counties where the risk level according to the MI Safe Start map is at C or D. However, COVID-19 testing is not required before visits at the end of life or window visits. When visitor testing is required, facilities should conduct point of care testing where possible. Otherwise, visitors must be tested on their own within 72 hours of coming to the facility and present proof of negative test results on entry.

• window visitors
• a parent, foster parent, or guardian of a resident who is 21 years of age or under
• those necessary for the support of activities of daily living (ADLs) under certain circumstances
• those necessary to ensure effective communication with individuals with hearing, vision, or speech impairments
• those, including clergy, visiting an individual under the facility’s care who is in serious or critical condition or in hospice care (these visitors are allowed to have physical contact with the resident as long as the resident is not COVID-19 positive, the visitors are wearing appropriate personal protective equipment (PPE), and the time spent within 6 feet of the resident is not more than 15 minutes)
• those necessary for the provision of medical care (must be provided outdoors or in a well-ventilated area whenever possible)

Second-level visitors. Other visitation may take place only if

1. the facility has no new COVID-19 cases (employee or resident) within the prior 14 days (admission of a COVID-19-positive resident is not included in this assessment) and is not doing outbreak testing;
2. the facility is in a county where the current risk level on the MI Safe State Map is at A, B, C, or D (except that outdoor visits are allowed where risk level is E); 
3. the local health department has not prohibited visitation at the facility; and
4. visitors are subject to testing.

Nonmedical providers and volunteers. Even when visitation would not be allowed due to the risk level on MI Safe Start map, nonmedical providers and volunteers are allowed. Hairdressers, nail salon technicians, cosmetologists, providers of religious or spiritual services, etc., are allowed when it is determined by a qualified medical professional that there will be a negative effect (actual or potential) on the resident when the service is not provided and the resident will not benefit from remote service. These services may be provided to residents who have never been diagnosed with COVID-19 or who are no longer infectious. Services must be provided outdoors or in a well-ventilated area. Volunteers who have been trained in infection control measures and who are supporting visitation may also visit.

Some additional requirements for all types of visits include the following (see the order for the entire list under section (2)(c)):

• Visitation must take place by appointment only and the facility may set reasonable time limits on the visit.
• Visitors must log arrival and departure times, provide contact information, and state in writing that they will inform the facility if they develop COVID-19 symptoms within 14 days of the visit.
• There is a maximum of two visitors per visit.
• Visitors must use a face covering, follow hand hygiene requirements, and comply with the facility’s PPE requirements.
• Visitors must use designated entrances that allow for COVID-19 screening.
• There must be a health evaluation of visitors, which includes tests for fever and other symptoms of COVID-19 as well as inquiry regarding exposure to someone with COVID-19. No one with a fever or known exposure may be admitted.
• Visitors must follow social distancing and refrain from physical contact, except for ADL visits, visits helping those with hearing, vision, or speech impairments, and visits by medical and nonmedical service providers (with these exceptions, the visitors must wear appropriate PPE and limit time within 6 feet of resident to 15 minutes).
• There must be adequate staff to assist with transition of residents, monitoring of the visitation, and for disinfecting of surfaces in the visitation area after each visit.

Visits with residents who are in isolation or under observation for symptoms of COVID-19 are prohibited.

Outdoor visitation. Outdoor visitation area must allow for 6 feet of distance between people and provide protection from weather.

Residential care facilities include homes for the aged, nursing homes, adult foster care facilities, hospice facilities, substance use disorder residential facilities, and assisted living facilities. It does not include independent living facilities.