submitted by Bria Lewis, Esq., Staff Attorney
On July 8, 2021, the NYS Department of Health (DOH) issued updated guidelines for visitation for both nursing homes and adult care facilities (ACFs). These guidelines supersede and replace any previously issued guidance regarding visitation. DOH states that regardless of how visitation is conducted, nursing homes and ACFs must continue to maintain infection prevention practices. Additionally, visitation should be person-centered and should consider the residents’ physical, mental, and psychosocial well-being, and support their quality of life.
Details for visitation in both nursing homes and ACFs are below.
Much of the guidelines remain the same from the previous guidance and state they are consistent with the Centers for Medicare & Medicaid Services (CMS) Residents, their family and others are encouraged to read the current DOH guidance for full details.
Highlights of the guidance are as follows:
- 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. While the guidance encourages visits to be held outdoors whenever practicable, facilities are reminded that a person-centered approach must be followed. In addition, the guidance states facilities should allow indoor visitation at all times and for all residents regardless of vaccination status except for a few circumstances when visitation should be limited to compassionate care situations due to a high risk of COVID-19 transmission.
- If the resident is fully vaccinated, they can choose to have close contact (including touch) with an unvaccinated visitor while both are wearing a well-fitting face mask and performing hand-hygiene before and after.
- If both the resident and their visitor(s) are fully vaccinated, and the resident and visitor(s) are alone in the resident’s room or designated visitation room, the resident and visitor may choose to have close contact (including touch) without a mask or face covering.
- Visitors should not be required to be tested or vaccinated (or show proof of such) as a condition of visitation.
- Visitation can occur during an outbreak indoors, with the appropriate safeguards, 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.
- 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.
- 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.
When scheduling visits, the guidance states that facilities should consider scheduling visits for a specified length of time to help ensure that all residents are able to receive visitors and the facility is able to maintain the core principles of infection prevention. However, any visitation schedule should allow residents to receive visitors for their desired length of time, to the extent possible in consideration of infection prevention practices and to respect the privacy of others residents in the event the resident shares the room.
Regarding Personal Caregiving Visitors: while the regulations implementing the Essential Caregiver Act remain law, because at this time there is no statewide public health emergency, the personal caregiving regulations are not in effect. Note however, compassionate caregivers, under the DOH guidance are to be allowed at all times. For more information about these regulations please see our blog post here: https://elderjusticeny.org/emergency-regulations-for-personal-caregiving-and-compassionate-caregiving-visitors-in-nursing-homes-and-adult-care-facilities/
Communal Dining and Activities
Communal dining and activities may occur while adhering to the core principles of infection prevention. Communal dining may occur without the use of face coverings or physical distancing, if all residents are fully vaccinated. If there are unvaccinated residents also dining in the communal dining area, all residents must wear face coverings when not eating and unvaccinated residents should physically distance from others.
Additionally, group activities may occur without the use of face coverings or social distancing if all residents participating are fully vaccinated. If any residents that are not fully vaccinated are participating, all residents must wear a face covering and unvaccinated residents should physically distance from others.
While there is some overlap with the DOH nursing home guidance, the ACF guidance is less restrictive and residents, their family, and others are encouraged to read the current DOH guidance for full details.
Highlights of the guidance are as follows:
- Subject to the resident’s right to deny or withdraw consent at any time, all ACFs must provide immediate access to any resident of visitors of their choice, including but not limited to immediate family or other relatives of the resident and any others who are visiting with the consent of the resident.
- 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. While DOH encourages visits to be held outdoors whenever practicable, and ACFs are allowed to consider the number of visitors per resident at any one time and the total number of visitors in the facility at anyone time, ACFs are reminded that visitation should always be person-centered and based upon each individual resident.
- 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.
Regarding Personal Caregiving Visitors, as stated above, while the regulations implementing the Essential Caregiver Act remain law, because at this time there is no statewide public health emergency, the personal caregiving regulations are not in effect. Note however, compassionate caregivers, under the DOH guidance are to be allowed at all times. For more information about these regulations please see our blog post here: https://elderjusticeny.org/emergency-regulations-for-personal-caregiving-and-compassionate-caregiving-visitors-in-nursing-homes-and-adult-care-facilities/
Communal Activities and Dining
Effective immediately, facilities may restart communal activities. However, before the resumption of communal activities, the facility must first develop comprehensive policies and procedures for monitoring the activities to ensure adherence to the core principles of infection control.
CDC recommendations allow for residents to have close contact and not wear masks if all residents participating in the activity are fully vaccinated. Fully vaccinated residents can participate in communal dining without social distancing or masks. Unvaccinated residents must maintain six feet of distance from others, and all other residents must wear masks when not dining (i.e. when coming to and leaving the dining room).
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.