We welcome the July 10th announcement and corresponding guidance issued by the NYS Department of Health (“DOH”) to reopen visitation to nursing homes and adult care facilities. We are pleased to see that “visitors” is not limited, and includes family members, loved ones, long-term care ombudsmen, and resident advocacy organizations. Visitors play an essential component to ensuring residents are safe and do not suffer from isolation, abuse, neglect, financial exploitation and other harms. The guidance is one step towards ensuring nursing home and adult care facility residents’ constitutional and other rights are upheld.
Many of the conditions for reopening to visitation are reasonable. However, some of the conditions for facilities to remain open for visitation are dependent on data that is not accessible to the public. While the Centers for Medicare & Medicaid Services (CMS) requires nursing homes report various COVID-19 data, and CMS publishes the data, the data is not user friendly nor is it timely released. Furthermore, the CMS reporting requirements do not apply to NYS adult care facilities, which are primarily governed by State law.
Nursing homes and adult care facilities are required to report new onset COVID-19 among staff or residents to the Department’s Hospital Emergency Response Data System (“HERDS”). HERDS is not publicly available and DOH up to this point, has refused to publish the numbers of residents and staff who test positive for COVID-19 by facility. It is reasonable and makes sense that determinations to restrict visitation is based on data. However it is not reasonable to exclude residents, their families, and the public, from knowing this information. Facilities and DOH can immediately halt visitation at any time if compliance requirements are not met or there is a community or facility spread of COVID-19. The decision to halt visitation made by DOH or a facility must be based on publicly available data and not be done behind closed doors.
Another area of concern is visitation is dependent on the facility’s ability to have “adequate” staffing to ensure for appropriate monitoring of visitation and to meet resident needs. Nursing homes and adult care facilities are required by law to have sufficient staffing to meet the needs of the residents. Residents and their families should not suffer another visitation ban due to the failure of the facility to ensure there is appropriate staffing. Visitors play a key role in fulfilling resident needs because facilities are often understaffed and DOH allows facilities to operate short-staffed by its continual failure fully enforce laws and regulations. Furthermore, the guidance does not lay out what staffing shortages entail. DOH should require facilities include in their plans, the actions they will take to ensure their facilities do not go understaffed. In addition, facilities should publicly post their staffing numbers and their plan of action to ensure they do not become “understaffed.”
We are also concerned that DOH does not include in its guidance a clear definition of “compassionate care.” Many nursing homes have interpreted “compassionate care” to be immediate end of life. This has stripped residents and their families from this crucial moment in time to be by their loved ones side at death. It has also prevented residents and their families from having meaningful communications prior to death. We encourage DOH to set forth a clear definition of “compassionate care” and refer DOH to CMS’ Frequently Asked Questions on Nursing Home Visitation, which states “the term “compassionate care situations” does not exclusively refer to end-of-life situations.”
This guidance is a first step in safely reopening nursing homes and adult care facilities to visitors, however more needs to be done, and all decisions must be made on data that is available to the public.