submitted by Lindsay Heckler, Esq.
On September 17, 2020, the Centers for Medicare & Medicaid Services (CMS) issued new nursing home visitation guidelines that replace and supersede all previous rules pertaining to nursing home visitation. The CMS guidance was issued shortly after the New York State Department of Health (NYSDOH) issued its own update to its September 15, 2020 requirements. The CMS guidance, effective immediately, compels nursing homes to facilitate both outdoor and indoor visitation so long as the nursing home meets certain criteria. Nursing homes that do not facilitate visitation in accordance with the CMS guidance, face citations and fines for non-compliance.
As detailed below, certain NYSDOH visitation requirements conflict, or otherwise do not align, with the CMS requirements. The discrepancies between the CMS and NYSDOH requirements is causing confusion for residents, their families, and nursing homes. While it is our understanding the NYSDOH is working to update its guidance, we want to make clear that in general, NYSDOH guidelines cannot conflict with the CMS requirements.
The CMS visitation requirements are accessed at https://www.cms.gov/files/document/qso-20-39-nh.pdf
Core Principles and Best Practices Must be Followed
CMS allows both outdoors and indoors visitation. Visitation should be person-centered and consider the residents’ physical, mental, and psychosocial well-being, and support their quality of life. Regardless on how the visits are conducted, nursing homes must follow certain core principles and best practices that reduce the risk of COVID-19 transmission, including: screening all who enter the facility for signs and symptoms of COVID-19, denial of entry of those with signs or symptoms, hand hygiene practices, face covering or mask, and social distancing.
CMS states that all visits should be held outdoors whenever practicable, and aside from weather considerations (i.e. cold temperatures or inclement weather), an individual resident’s health status (ie medical condition or COVID-19 status), or a facility’s outbreak status, outdoor visitation should be facilitated routinely. In addition, nursing homes should create accessible and safe outdoor spaces for visitation and have a process to limit the number and size of visits occurring to support safe infection prevention actions.
CMS states that facilities should accommodate and support indoor visitation, including visits for reasons beyond compassionate care situations. Visitation will be allowed as long as there has been no new onset of COVID-19 cases in the last 14 days and the facility is not currently conducting outbreak testing. Indoor visitation, except for compassionate care visits, will also be restricted when the COVID-19 county positivity rate is over 10%. These restrictions only apply to indoor visitation. Facilities should limit the number of visitors per resident at one time and limit the total number of visitors in the facility at one time. In-room visitation is allowed unless the resident is sharing a room. In the case of a roommate, CMS allows in-room visitation if the health status of the resident prevents leaving the room and the COVID-19 infection prevention core principles are being followed.
NYSDOH indoor visitation requirements however, are more restrictive and strictly prohibits in-room visitation except for residents who are bed bound, end of life visits, or parents visiting pediatric resident. Clarification by NYSDOH is needed.
CMS does not require testing for visitors. However, for facilities in counties where the infection rate is 5% or higher, testing is encouraged when feasible. To the contrary, NYSDOH requires all visitors to present a verified negative COVID-19 test result within the last 7 days prior to a visit to a nursing home facility. Compassionate care/end of life visitors are not required to present a test.
This is an area NYSDOH must clarify. While testing can be useful to ensure visitors who are asymptomatic do not enter a nursing home, there are many challenges to family members and other visitors in accessing the tests. Absent clarification that aligns with the CMS guidelines, confusion and potentially unlawful visitation restrictions will occur.
Compassionate Care Visitation
CMS expands the definition of compassionate care visits beyond end of life situations. The guidance provides examples for compassionate care visitation, including residents who are struggling with the change in environment, grieving, experiencing weight loss or emotional distress. DOH still defines compassionate care visits for end of life situations only.
This is another area NYSDOH must clarify and align with the CMS guidelines.
Nursing homes are allowed to restrict visitation due to the COVID-19 county positivity rate, the facility’s COVID-19 status, a resident’s COVID-19 status, visitor symptoms, failure to follow proper infection control practices, or other relevant factors. However, the CMS guidance is clear, that facilities may not restrict visitation without a reasonable clinical or safety cause. Failure of a nursing home to facilitate in-person visitation would constitute a potential violation of a resident’s right to visitation and the facility would be subject to citation and enforcement actions.
We are concerned as to how NYSDOH will interpret “other relevant factors.” For example, will NYSDOH consider “relevant factors” its NYS conditions such as required testing of all visitors?
The Center for Elder Law & Justice welcomes the CMS guidelines that significantly ease restrictions on visitation restrictions. The original visitation restrictions were put into place in an attempt to protect residents from contracting COVID-19. However those restrictions caused great harm to many residents who were isolated from their family and friends. While we wait on NYSDOH to update its visitation policy, we believe the CMS guidance supersedes NYSDOH guidance. Residents have the right to receive visitors.
The Center for Elder Law & Justice is available to answer questions residents and their families have on the new visitation guidelines. If you are a resident or family member of a resident in a long-term care facility, and have questions or concerns about visitation or communications, please call our office for potential legal representation. Call us at (716) 853-3087.