submitted by Lindsay Heckler, Supervising Attorney
NYS Department of Health directs nursing homes to follow CMS guidelines: visitation in nursing homes is allowed for all residents at all times. On November 16, 2021, the NYS Department of Health issued Dear Administrator Letter DAL-NH 21-27, accessed here, directing all nursing homes to immediately comply with the provisions of the updated nursing home visitation guidelines issued by CMS on November 12, 2021.
Today, November 12, 2021, the Centers for Medicare & Medicaid Services (CMS) announced that visitation in nursing homes is now allowed for all residents at all times with what should be rare limited restrictions based on COVID-19 infection prevention principles. Residents, their visitors, and nursing home staff should read the CMS guidance, accessed here, and nursing homes should begin allowing these visits.
The Center for Elder Law & Justice urges the NYS DOH to immediately rescind its July 2021 guidance, or in the alternative, immediately revise it such that it complies with the CMS November 12, 2021 memo. NYS DOH must begin ensuring nursing homes are properly facilitating visitation in accordance with CMS directive. As the State Survey Agency, NYS DOH has a responsibility to enforce the nursing home regulations as directed by CMS.
Highlights of the new guidance:
Nursing homes must allow indoor visitation at all times and for all residents as permitted under the regulations.
There is no limit on the number of visitors a resident can have at one time, however visits are to be conducted in a manner that adheres to the core principles of COVID-19 infection prevention and does not increase risk to other residents. For example, facilities should ensure physical distancing can still be maintained during peak times of visitation such as lunch time and after business hours. Facilities are also to avoid large gatherings where a large number of visitors are in the same space at the same time and physical distancing cannot be maintained. Facilities are still allowed to limit visitor movement within the facility.
If a resident has a roommate who is unvaccinated or immunocompromised (regardless of vaccination status), then visits should not be conducted in the resident’s room if possible. While not recommended, residents who are on transmission-based precautions or quarantine can still receive visitors. In these cases, visits should occur in the resident’s room, masks worn, and visitors should be made aware of the potential risks of visiting and precautions necessary in order to visit the resident.
Indoor Visitation during an Outbreak Investigation
Visitors must still be allowed in the facility during an outbreak investigation. An outbreak investigation is initiated when a new nursing home onset of COVID-19 occurs (i.e. a new COVID-19 case among residents or staff). If residents or their representatives would like to have a visit during an outbreak investigation, they should wear masks, regardless of vaccination status and visits should ideally occur in the resident’s room.
Compassionate Care Visits
Are to be allowed at all times. Because visitation is now allowed at all times for all residents, there should be few scenarios when visitation should be limited only to compassionate care visits. CMS expects these scenarios to be rare events.
Communal Activities, Dining, and Resident Outings
Nursing homes must permit residents to leave the facility as they choose. Should a resident choose to leave, the facility should remind the resident and any individual accompanying the resident to follow all recommended infection prevention practices including wearing a mask. Upon the resident’s return, the nursing home should screen the resident for signs or symptoms of COVID-19 and continue to monitor for signs or symptoms daily. They only time a facility is allowed to consider quarantining a resident is if the resident who leaves the facility is not fully vaccinated and they have reported possible close contact to an individual with COVID-19 while outside of the nursing home, or if based on an assessment of risk, uncertainty exists about the unvaccinated resident’s adherence (or those around them) to the recommended infection prevention measures.
In summary, and as stated by CMS in the guidance, “there are no longer scenarios related to COVID-19 where visitation should be limited, except for certain situations when the visit is limited to being conducted in the resident’s room.” Federal regulation, 42 CFR § 483.10(f)(4), states that the resident has the right to receive visitors of the resident’s choosing at the time of the resident’s choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident. As such, failure of a nursing home to facilitate visitation at all times, should be considered a violation that subjects the nursing home to citation and enforcement action.
The Center for Elder Law & Justice is available to help. If you are a resident or family member of a resident in a long-term care facility, and have questions or concerns about visitation, please contact us at (716) 853-3087. In addition, our free legal advice helpline can provide answers to brief legal questions to residents of New York State who are 55 or older. Call at 1-844-481-0973 between 9am and 11am to reach an attorney directly or call and leave a message. The helpline can also be contacted via e-mail at firstname.lastname@example.org.
The above content is to be used for informational purposes only and is subject to change at any time. This information does not constitute legal advice and does not create an attorney-client relationship.