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NAELA News Journal - NAELA News Online

Nursing Home Visitation Changes

By Andrew R. Boyer, Esq., and Edwin M. Boyer, Esq., CAP, Fellow
Published March 2021
“This has been tough…especially on them. This is the worst position to be in. Telling the families ‘no’ and the resident ‘no’ and watching their hearts break.”

That is a text message received on October 21, 2020, from David Flanary, a friend and nursing facility staff member, who was tasked with facilitating daily window and video visits between residents and family members while his facility enforced visitation restrictions. Throughout the course of the current pandemic, nursing home visitation has been a source of much frustration for residents, families, and staff. Following the Centers for Medicare & Medicaid Services (CMS) guidance issued in March 2020, facilities across the country restricted visitation of visitors and non-essential health care personnel, except for certain compassionate care situations, such as an end-of-life scenario. CMS guidance evolved during the year in an attempt to strike a balance between the lesser of two evils -- the consequences of an outbreak, and the psychological effects of long-term isolation. Indoor visitation was allowed and encouraged in September 2020 as long as there was not a current outbreak.

Following the administration of the COVID vaccines, and with nursing home residents and health care workers having priority status, the infection rates dropped significantly, reducing the risk of infection and death. This prompted CMS to review its visitation guidance. As of March 2021, CMS is urging states to loosen restrictions to allow indoor visitation “regardless of vaccination status of the resident or visitor, unless certain scenarios arise that would limit visitation…”. The new guidance continues to urge the “core principles of COVID-19 infection control,” including specifically, facilitating visitation that would encourage social distancing; however, by example, the guidance explicitly recognizes that there is no substitute for physical contact and directs that fully vaccinated residents should be able to choose whether to have close contact (“including touch”) while maintaining other infection control protocols. 

CMS guidance during the pandemic has been written against the backdrop of Nursing Home Residents Rights and the Nursing Home Reform Act of 1987 (see “Advocating for Your Clients’ Rights in the Nursing Home” link at right) as outlined in 42 U.S.C. 483. Under this backdrop lies certain foundational rights under categories that include: respect and dignity, self-determination, planning and implementing care and choosing a physician, information and communication, privacy and confidentiality, safe environment, equal access to care, and opportunity to receive notice. 42 U.S.C 483.10(f)(4) specifically addresses visitation. “The facility must provide immediate access to a resident by immediate family and other relatives of the resident, subject to the resident’s right to deny or withdraw consent at any time….” CMS guidance has modified these laws to fit our current state of affairs by standing for the proposition that general visitation may be restricted for adequate reasons due to clinical necessity or resident safety, but prohibiting visitation without an adequate clinical or safety reason could be in violation of 483.10(f)(4). 

CMS Revised Guidance as it pertains to visitation has been summarized by CMS as follows:

Indoor Visitation

• Facilities should allow responsible indoor visitation at all times and for all residents, regardless of vaccination status of the resident or visitor, unless certain scenarios arise that would limit visitation for:
o Unvaccinated residents if 1) the COVID-19 county positivity rate is greater than 10 percent; and 2) less than 70 percent of residents in the facility are fully vaccinated;
o Residents with confirmed COVID-19 infection, whether vaccinated or unvaccinated, until they have met the criteria to discontinue transmission-based precautions; or
o Residents in quarantine, whether vaccinated or unvaccinated, until they have met criteria for release from quarantine.

Indoor Visitation During an Outbreak

o While outbreaks increase the risk of COVID-19 transmission, a facility should not restrict visitation for all residents as long as there is evidence that the transmission of COVID-19 is contained to a single area (e.g., unit) of the facility. Facilities should continue to adhere to CMS regulations and guidance for COVID-19 testing, including routine staff testing, testing of individuals with symptoms, and outbreak testing.
o When a new case of COVID-19 among residents or staff is identified, a facility should immediately begin outbreak testing and suspend all visitation until at least one round of facility-wide testing is completed. Visitation can resume based on the following criteria:
      o If the first round of outbreak testing reveals no additional COVID-19 cases in other areas (e.g., units) of the facility, then visitation can resume for residents in areas/units with no COVID-19 cases. However, the facility should suspend visitation on the affected unit until the facility meets the criteria to discontinue outbreak testing.
      o If the first round of outbreak testing reveals one or more additional COVID-19 cases in other areas/units of the facility (e.g., new cases in two or more units) then facilities should suspend visitation for all residents (vaccinated and unvaccinated) until the facility meets the criteria to discontinue outbreak testing.

Compassionate Care Visits
Visits for compassionate care, such as an end-of-life situation or a resident in decline or distress, should be allowed at all times for any resident (vaccinated or unvaccinated) regardless of the above scenarios. In addition, facilities and visitors should continue all infection prevention and control practices.

While CMS guidance and the general relaxation of restrictions is a welcome and necessary change for residents and families, certain aspects of implementation may continue to prove challenging, if not outright more difficult, for facilities and staff on the front lines to implement and enforce. When viewed against the backdrop of residents’ rights, including the right to privacy, guidance regarding scheduling limitations to accommodate all residents, decisions about numbers of visitors, and the space to host them, the guidance has been criticized as placing additional responsibilities on an already understaffed and stressed facility system. 

What were once activity rooms and dining halls may necessarily be converted to segregated meeting places since visitation is less likely to be allowed in resident rooms. It remains to be seen whether these logistical challenges can be overcome and whether it can be done without compromising resident safety. Current CMS guidance on vaccinations states that while visitors are encouraged to be vaccinated, they should not be required to be vaccinated. These issues, along with the remarkably low turnout of nursing home workers to receive their first dose of vaccine, may serve to complicate the hopes of residents and families of a swift return to normal visitation.
About the Author
Andrew R. Boyer, Esq., and Edwin M. Boyer, Esq., CAP, Fellow, are Florida Bar Board Certified Elder Law Attorneys at Boyer & Boyer, P.A. 
Related Material
NAELA Recorded Webinar: Advocating for Your Clients’ Rights in the Nursing Home

Presented by Edwin Boyer, Esq., CAP, Fellow; Judith Grimaldi, CELA, CAP; & Robyn Grant, MSW, The Consumer Voice
What tools does the Nursing Home Reform Act of 1987 give you to advocate for your clients living in nursing homes? The recorded presentation includes COVID-related advocacy topics including the CMS 100-day COVID waiver. Join our panel to learn more about the Act through scenarios, discussion of care plans, and improper discharge issues.

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