submitted by Bria Lewis, Esq., Staff Attorney
On June 1, 2021, the NYS Department of Health (DOH) issued emergency regulations for personal caregiving and compassionate caregiving visitors in nursing homes and adult care facilities (ACF), as established by 2801-h of the Public Health Law (PHL) and section 461-u of the Social Services Law (SSL). These regulations were to remain in effect while New York State was in a state of emergency to fight COVID-19. As of June 24, 2021 Governor Cuomo announced that New York is no longer in a state of emergency, therefore these emergency regulations are no longer in effect.
Details for visitation in both nursing homes and ACFs are below.
Now, nursing homes should be following the visitation guidelines issued by DOH on March 25, 2021. DOH continues to emphasize the importance of maintaining infection prevention practices to ensure safe visitation. DOH also reminds facilities of the responsibility to ensure that resident and family communication is ongoing and supported by virtual visits.
These guidelines state that residents can leave the facility for outings and each facility is required to have appropriate policies and procedures in place to address infection control and prevention during and after visits and outings.
Visitation can be conducted through different means based on a facility’s structure and residents’ needs, such as in resident rooms, dedicated visitation spaces and outdoors. Visits should be held outdoors whenever practicable. Visitors should not be required to be tested or vaccinated (or show proof of such) as a condition of visitation.
Visitation should only be limited for the following reasons (except for compassionate care visitation, which should be permitted at all times):
- Unvaccinated residents, if the nursing home’s COVID-19 county positivity rate is greater than 10% and less than 70% of residents in the facility are fully vaccinated;
- Residents with confirmed COVID-19 infection, whether vaccinated or unvaccinated;
- Residents in quarantine, whether vaccinated or unvaccinated, until they have met criteria for release from quarantine.
Additionally, visitation can occur during an outbreak. An outbreak exists when a new nursing home case of COVID-19 occurs among residents or staff. With the appropriate safeguards, visitation can still occur when there is an outbreak, as long as there is evidence that the transmission of COVID-19 is contained to a single area or unit of the facility. However, the facility should suspend visitation on the affected unit until the facility meets the criteria to discontinue outbreak testing.
Compassionate care visitation can occur for reasons beyond end of life. Compassionate care visits should be allowed at all times, regardless of a resident’s vaccination status, the county’s COVID-19 positivity rate, or an outbreak in the facility. Using a person-centered approach, nursing homes should work with residents, families, caregivers, resident representatives, and the Ombudsman program to identify the need for compassionate care visits.
Adult Care Facilities
ACFs should be following the visitation guidelines issued on June 3, 2021. As stated above, each ACF is required to have appropriate policies and procedures in place that respect residents’ rights and address infection control and prevention when residents leave the facility for outings. Visitors are not required to be tested or vaccinated (or show proof of such) as a condition of visitation. DOH states that an ACF must facilitate in-person visitation and may not restrict visitation absent reasonable cause. Additionally, compassionate care visits should always be allowed regardless of a resident’s vaccination status, the region’s COVID-19 positivity rate, or a facility outbreak.
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 email@example.com.