Resident Right to Access the Community during the Pandemic: Holiday Guidance for Nursing Homes and Adult Care Facilities

submitted by Lindsay Heckler, Esq.

Residents who live in adult care facilities and nursing homes (including for short-term rehabilitation stays) have the right to leave the building and access the community. Access to the community includes: medical appointments, social visits, religious services, gatherings with family/friends, and more. Both New York State (NYS) and the federal Centers for Medicare & Medicaid Services (CMS) strongly discourage residents from leaving the facility during the pandemic. However, residents retain the right to temporarily leave the facility, or otherwise access the community, even during a pandemic.

On November 23, 2020, Governor Cuomo issued Executive Order 202.77 that ordered the Commissioner of Health to establish guidelines for the acceptance of patients after being released from a nursing home or adult care facility for a leave of absence to visit friends or relatives. The Executive Order also suspends and modifies the New York Codes, Rules, and Regulations to the extent necessary to comply with the guidance in order to protect the health and safety of other residents at the facility, upon such resident’s return.

On November 24, 2020, NYS Department of Health issued Health Advisory: Holiday Guidance for Nursing Homes and Adult Care Facilities. This Health Advisory, which can be accessed here, follows Executive Order 202.77, and is binding on nursing homes and adult care facilities. Residents have the right to leave the facility for a temporary leave of absence to visit relatives or friends. However, as stated in the Health Advisory, the following must occur:

Residents who leave a facility must:

  • Quarantine or minimize contact to the extent safely possible prior to their return to the facility.
  • Test negative immediately (within 24 hours) prior to the return to the facility.
  • Be quarantined on transmission-based precautions upon return to the facility for 14 days.
  • Be tested at least three times during the 14-day quarantine period at the facility, including on the first day upon return, and the last day that a resident must be quarantined.

Facilities also have responsibilities and must:

  • Develop a plan for the return of residents who leave for home or family visits or social outings.
  • Notify families taking residents out of the facility that residents will not be permitted to return until they present a negative COVID-19 test within the preceding 24 hours.
  • Require the leaving resident and a family or friend attest in writing that they:
    • Are aware of the risks involved with taking the resident out of the facility;
    • Will follow masking, social distancing, and hand hygiene practices pursuant to CDC and DOH directives;
    • Will notify the facility if the resident becomes ill within one week of leaving the facility;
    • Will notify the facility if anyone with whom the resident socialized tests positive for COVID-19 or influenza or exhibits symptoms of COVID-19 and influenza within 14 days of the resident’s return to the facility;
    • Will communicate with the facility about a return date for the resident to the facility in accordance with the facility’s policy; and
    • Will quarantine or minimize contact (or assist the resident to do so) to the extent safely possible prior to return to a nursing home.
  • Screen and increase monitoring for signs and symptoms of illness upon resident return.
  • Certify as required by Executive Order 202.77, and Executive Order 202.30 that they have the ability to implement transmission-based precautions for such residents for fourteen days upon return in compliance with NYSDOH guidance and CMS directives.

The Center for Elder Law & Justice cannot recommend whether an individual should leave a nursing home or adult care facility to visit family or engage in other social outings. That is the decision of the resident and the resident (and family/friends) must be fully aware of the risks and understand the rules that must be followed in order to return.  If the resident does decide to leave the facility for a temporary visit with family, friends, or social outing, it is encouraged the resident has a plan in place prior to leaving the facility to comply with the NYS Department of Health requirements. This includes arranging for testing immediately prior to returning to the facility and ensuring family and friends understand their responsibilities.

For residents who do not leave the facility during the holidays, the November 24th  Health Advisory also informs both nursing homes and adult care facilities to find creative and innovative ways to celebrate the holidays, and promote and increase virtual communications during the holiday season.

If you are a resident or a family member of a resident in a nursing home or adult care facility and have questions about the November 24th Health Advisory, the residents’ right to access the community, virtual/telephonic visitation, or other questions/concerns, please call our office at (716) 853-3087 for potential assistance.




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