Submitted by Bria Lewis, Esq, Staff Attorney

On March 10, 2021 Centers for Medicare & Medicaid Services (CMS) released an update to their nursing home visitation guidelines. This guidance addresses the impact that the COVID-19 vaccination has on visitation. The information contained in this guidance supersedes and replaces previously issued guidance and recommendations regarding visitation. CMS still recommends that certain COVID-19 core principles and infection prevention practices occur to ensure safe visitation.

NYS Department of Health (DOH) updated their visitation guidance on February 22, 2021 for nursing homes and on March 2, 2021 for adult care facilities. As detailed below, certain DOH visitation requirements do not align with the new CMS requirements. Please note, many nursing homes in the state may choose to adhere to the guidelines released by DOH as they are more restrictive. The Center for Elder Law & Justice sent a letter to DOH and the Governor requesting that DOH adopt the revised CMS guidance.

Outdoor Visitation

CMS stats that 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.

DOH prefers outdoor visitation as well. However, they are prohibited if the county positivity rate is more than 10% or the facility is currently conducting outbreak testing.

*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.

Indoor Visitation

CMS states facilities should allow indoor visitation at all times and for all residents regardless of vaccination status.

Visitation should be limited for the following scenarios:

  • 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.

CMS further states that they acknowledge 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.

The DOH 14 day COVID-19 free requirement remains the same from their previous visitation guidance. As such in order for a facility to conduct in-person visitation there must be no new onset of COVID-19 cases in the last 14 days and the facility must not currently be conducting outbreak testing. Additionally, DOH does not allow for close physical contact, regardless of the residents’ vaccination status.

Indoor Visitation during an Outbreak

An outbreak exists when a new nursing home case of COVID-19 occurs among residents or staff. CMS states that 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. 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.

DOH does not allow for indoor visitation when the facility is conducting outbreak testing. However, compassionate care visitation is allowed.

Visitor Testing and Vaccination

Testing is not required, but encouraged for facilities in medium or high positivity counties to offer to visitors, if feasible. CMS encourages visitors to become vaccinated when they have the opportunity, but this is not required to visit. Visitors should not be required to be tested or vaccinated (or show proof of such) as a condition of visitation.

DOH has a testing requirement for visitors depending on community positivity rate. The community positivity rate is split into three categories:

Low (below 5%): Visitation is permitted and visitor testing is strongly encouraged. Facilities are permitted to use rapid testing.

Medium (5%-10%): Visitation is permitted and visitor testing is required. Visitors must either present a negative COVID-19 test from the past 72 hours, or facilities may use rapid testing to meet the testing requirement.

High (above 10%): Visitation may only occur for compassionate care situations. Testing is not required but facilities should offer rapid testing whenever possible.

Compassionate Care Visits

Compassionate care visitation remains the same from the previous guidance, meaning these visits can occur for reasons beyond end of life and hospice situations. 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. As mentioned before, if the resident is fully vaccinated, they can choose to have close contact (including touch) with their visitor. Visitors should still physically distance from other residents and staff in the facility.

DOH follows the same compassionate care visitation guidelines as CMS. However, DOH has stated these visits should not be routine, and are allowed on a limited basis as an exception to restricting visitation. Again DOH does not allow for close physical contact, regardless of the residents’ vaccination status.

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, please call our office for potential legal representation at (716) 853-3087.

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