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, as established by 2801-h of the Public Health Law (PHL) and section 461-u of the Social Services Law (SSL). These regulations went into effect the same day. Nursing homes and adult care facilities (collectively referred to as facility) have until June 15, 2021 to be in compliance with the new regulations and to speak with residents to see if they want to designate caregivers.
A personal caregiving visitor is defined as a family member, close friend, or legal guardian of a resident designated by such resident, or such resident’s lawful representative, to assist with personal caregiving or compassionate caregiving for the resident. Personal caregiving is defined as care and support of a resident to benefit such resident’s mental, physical, or social well-being. Compassionate caregiving is defined as personal caregiving provided in anticipation of the end of the resident’s life or in the instance of significant mental, physical or social decline or crisis.
Personal Caregiving Visitation
During a declared public health emergency (PHE), a facility must continue to allow residents to access their designated personal caregiving visitors. A resident shall be entitled to designate at least two personal caregiving visitors at one time. All personal caregiving visitors are required to adhere to all infection control measures established by the facility and any guidelines from DOH.
Personal caregiving visitation may be temporarily suspended or limited for the following reasons:
- If the facility has reasonable cause to believe that the resident will not benefit from accessing their designated personal caregiving visitor, and such reasoning has been documented in the residents care plan, a facility may require a health or mental professional to provide a written statement that the personal caregiving will substantially benefit the resident’s quality of life;
- The declared PHE is related to a communicable disease and DOH determines that local infection rates are at a level that presents a serious risk of transmission of such communicable disease within local facilities; the facility is experiencing temporary inadequate staffing and has reported such staffing shortage to DOH; or
- If the facility has reasonable cause to believe that permitting the personal caregiving visitor to meet with the resident is likely to pose a threat of serious physical, mental, or psychological harm to such resident.
If visitation is suspended due to “inadequate staffing,” we encourage residents and their families to file a complaint with DOH. We also encourage residents and their families to speak with the facility and ask what is being done to increase staffing and how the needs of the residents are being met.
The facility is allowed to establish policies and procedures regarding the frequency and duration of personal caregiving visitors and limitations on the total number of personal caregiving visitors allowed to visit the resident and the facility at any one time. However, the facility policy shall ensure that the residents are able to receive their designated personal caregiver visitors for the resident’s desired frequency and length of time. Any restrictions on that desired length of time and duration must be because of the following:
- The resident’s clinical or personal care needs;
- Necessary to ensure the resident’s roommate has adequate privacy and space to receive their own designated personal caregiving visitors; or
- The desired visitation frequency or duration would impair the effective implementation of applicable infection control measures.
Compassionate Caregiving Visitation
A resident is allowed to designate at least two compassionate caregiving visitors at one time. Compassionate caregiving should be permitted at all times, regardless of any general visitation restrictions or personal caregiving visitation restrictions in effect in the facility. Facilities are required to screen compassionate caregiving visitors for communicable diseases prior to entering the facility. Situations in which a resident is eligible for a compassionate caregiving visitor include but are not limited to the following:
- End of life;
- The resident, who was living with their family before recently being admitted to an adult care facility, is struggling with the change in environment and lack of physical family support;
- The resident is grieving after a friend or family member recently passed away;
- The resident needs cueing and encouragement with eating or drinking, and such cueing was previously provided by family and/or caregiver(s), and the resident is now experiencing weight loss or dehydration; and
- the resident, who used to talk and interact with others, is experiencing emotional distress, seldom speaking, or crying more frequently (when the resident had rarely cried in the past).
We expect DOH to release Dear Administrators letters for both nursing homes and adult care facilities regarding the implementation of these new regulations. We will provide an update when there is more information.
Updated Guidelines for Adult Care Facility Visitation
On June 3, 2021 DOH updated their visitation guidelines for adult care facilities (ACF). 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. Testing is not required for visitors to enter an ACF. 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.