submitted by Bria Lewis, Esq, Staff Attorney
On March 25, 2021, the NYS Department of Health (DOH) updated guidelines for visitation for both nursing homes and adult care facilities. Overall these guidelines are consistent with the federal guidelines released by the Centers for Medicare & Medicaid Services (CMS) on March 10, 2021, which addressed the impact that the COVID-19 vaccination has on visitation.
There are a few major updates in the guidelines for both nursing homes and adult care facilities:
- The requirement that the facility is 14 days COVID-19 free has been removed.
- The new guidelines supersede and replace any previously issued guidance regarding visitation. This includes the February 24th (for nursing homes), the March 2nd (for adult care facilities) and the November 24th holiday guidance.
- 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.
In both guidelines, 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.
Details for both guidance documents are explained below.
In addition to the updates stated above, the updated nursing home guidelines are as follows:
DOH states outdoor visitation is preferred even when the resident and visitor are fully vaccinated* against COVID-19. Outdoor visits generally pose a lower risks of transmission due to increased space and airflow. Visits should be held outdoors whenever practicable.
*Fully vaccinated refers to a person who is at least 2 weeks following receipt of the second dose in a 2-dose series, or at least 2 weeks following receipt of one does of a single-dose vaccine, per CDC’s Public Health Recommendations for Vaccinated Persons.
DOH states facilities should allow indoor visitation at all times and for all residents regardless of vaccination status. However, visitation should be limited for the following scenarios (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.
DOH states it acknowledges the toll that separation and isolation has taken. Therefore, if the resident is fully vaccinated, they can choose to have close contact (including touch) with their visitor while wearing a well-fitting face mask and performing hand-hygiene before and after. Visitors should still physically distance from other residents and staff in the facility.
Indoor Visitation 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. If subsequent rounds of outbreak testing identify one or more additional COVID-19 cases in other areas or units of the facility, then facilities should suspend visitation for all residents (vaccinated and unvaccinated), until the facility meets the criteria to discontinue outbreak testing.
Visitor Testing and Vaccination
DOH strongly recommends that all facilities offer testing to visitors. CMS encourages facilities in medium or high positivity counties to offer testing if feasible. In addition, DOH encourages visitors to become vaccinated when eligible. Visitors should not be required to be tested or vaccinated (or show proof of such) as a condition of visitation. This also applies to representatives of the Office of the State Long-Term Care Ombudsman.
Compassionate Care Visits
Compassionate care visitation remains the same from the previous guidance, meaning these visits 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.
Communal Dining and Activities
Communal dining and activities may occur while adhering to the core principles of COVID-19 infection prevention. Residents may eat in the same room with social distancing. Additionally, group activities may also be facilitated with social distancing among residents, appropriate hand hygiene, and use of a face covering.
Adult Care Facilities
As stated above, there is no longer the requirement that the facility is 14 days COVID-19 free in order for visitation to occur. Visitation can be conducted in resident rooms, dedicated visitation spaces, and outdoors (weather permitting). Like with nursing homes, core principles and best practices that reduce the risk of COVID-19 transmission must be followed.
Furthermore, residents are able to leave the facility for outings. Like with nursing homes, each facility is required to have appropriate policies and procedures in place to address infection control and prevention when residents leave the facility for outings.
The guidance is not clear on whether close contact is allowed for fully vaccinated residents and visitors. It is our position that because the guidance is based on that issued by CMS for nursing homes, and adult care facilities are a lower level of care than nursing homes, such close contact is allowed in adult care facilities. Additionally, the guidance does not mention if indoor visitation will occur if there is an outbreak. We have sent a request to DOH asking for further clarification.
We expect many residents and family members to have questions about the visitation guidelines in both nursing homes and adult care facilities. While nursing homes and adult care facilities should be providing updates to residents and families, for example, through resident and family councils/organizations, or through virtual meetings, 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 or communications, contact us at (716) 853-3087.
*The above content is for informational purposes only and should not be construed as legal advice.