Commentary

New CMS Visitation Guidance for Nursing Homes

On September 17, 2020, The Centers for Medicare and Medicaid Services (CMS) issued new guidance to State Nursing Home Survey Agency Directors, concerning visitation during the COVID-19 Public Health Emergency.

Under the new guidance, CMS recognizes the significant toll that restricted visitation has had on nursing home residents’ physical and emotional well-being.  While previous guidance restricted visitation by all visitors and non-essential health care personnel, except for compassionate care situations, such as end of life care, the new guidance takes a more “person centered” approach to visitation.  Under the new guidance, more liberal visitation must be allowed in localities where the COVID-19 positivity testing rate is deemed to be Low (<5%, “Green zone”) or Medium (5% to 10%, “Yellow zone”), with certain exceptions, such as the facility’s specific COVID-19 status, a particular resident’s COVID-19 status, visitor symptoms, lack of adherence (by a visitor) to proper infection control practices, or “other relevant factors related to the COVID-19 PHE.”

Visitation should be limited to “compassionate care situations” when the positivity rate is above 10% (“Red zone”). A review of CMS’ County positivity rate for Central Virginia as of the week ending 9/13/20 showed that the City of Richmond, and the counties of Henrico, Chesterfield, Goochland, Powhatan and New Kent were all in the Yellow zone.  Only Hanover County, with a 12.5% positivity rate, was in the Red zone.  By way of contrast, during the same period every county in New York and virtually every county in New Jersey were in the Green zone.

Under the new guidance, compassionate care visitation is not to be limited to cases where a resident is in end of life care.  Other examples of a resident needing a compassionate care visitor would include a recently admitted resident who is struggling with the change in environment and lack of physical family support; a resident who is grieving after the death of a family member or friend; a resident who needs cueing and encouragement to eat or drink (when such help was previously provided by family member or other caregiver), and who is experiencing dehydration or weight loss; or, a resident who was formerly talkative and conversant, but who is experiencing emotional distress, is speaking less or not at all, or is crying more frequently than in the past.

CMS recommends whenever conditions permit, outdoor visitation is preferred.  Using tents, placing limits on the total number of visitors at any given time or the total number of visitors per resident at any given time and requiring social distancing (of at least 6 feet) at all times will help keep residents safe.  Indoor visitation is recommended only when there has been no new onset of COVID-19 cases in the previous 14 days and the facility is not currently conducting outbreak testing.  Visitation with residents who share a room should not take place in the resident’s room, when possible.

The new guidance also states that physical distancing should be observed at all times, including the use of masks and clear plastic dividers.  However, during a compassionate care visit, if a visitor and a facility can identify a way to permit personal contact, it should only be done following all appropriate infection prevention guidelines and for a limited period of time.

Failure of a facility to permit visitation consistent with the new guidelines would constitute a violation of the resident’s visitation rights under 42 CFR 483.10(f)(4) and the facility would be subject to citation and enforcement actions.

Nothing contained in the new guidance changes the fact that all Medicare and Medicaid certified nursing homes must provide the State Long Term Care Ombudsman with immediate access to any resident.  Moreover, in person access by the Ombudsman can only be restricted for reasonable cause.

The new guidance encourages all facilities to apply for up to $3,000 in Civil Monetary Penalty funds for the purchase of communication devices, such as tablets or webcams, to increase their ability to help residents stay connected with loved ones.  Facilities can also apply for up to $3,000 in CMP funds to help pay for tents and clear plastic dividers.

According to Joani Latimer, State Long Term Care Ombudsman, the Office of Licensure and Certification of the Virginia Department of Health has already notified affected nursing facilities statewide that they should not unduly restrict visitation under the new CMS guidance.  Ms. Latimer further indicated that many nursing facilities are already in the process of updating their general visitation and compassionate care visitation policies due to the new guidance.  She was also aware of several facilities already implementing new visitation policies.  Failure of a facility to comply with the new guidance could result in a violation of 42 CFR 483.10(f)(4) and subject the facility to a potential citation and enforcement action by CMS.