CMS Releases Updated Guidance on Nursing Home Visitation

Introduction

On September 17, 2020, CMS released updated guidance on visitation in nursing homes during the COVID-19 Public Health Emergency. This guidance supersedes all previous guidance CMS published on nursing home visitation. While previous guidance focused on protecting nursing home residents from COVID-19 exposure, the updated guidance recognizes the emotional and physical toll that separation from friends and family has taken on nursing home residents. Where facilities can accommodate visitation, the new guidance reminds them of the need to do so.

Updated Guidance on Visitation

Visitation may now be conducted in-person and inside the facility, including in resident rooms, for circumstances beyond compassionate care situations. Regardless of how a facility elects to conduct its visitation, it should keep in mind the following principles and best practices:

• The facility should screen all people who attempt to enter the facility for signs and symptoms of COVID-19. If visitors exhibit such symptoms, they should be denied entry to, or asked to leave, the facility.
• Hand Hygiene – Best practices is for each facility to provide alcohol-based hand rub to all who enter the facility.
• All visitors should wear a face covering or mask covering the mouth and nose at all times they are in the facility.
• All persons in the facility should maintain a social distance of six feet.
• The facility should display instructional signage throughout the facility concerning, and should educate all visitors on, the signs and symptoms of COVID-19, the facility’s infection control precautions, and other applicable facility policies and practices.
• The facility should disinfect high frequency touch surfaces often.
• The facility should disinfect the area the visit occurs in after the visit.
• All staff should appropriately use PPE.
• The facility should properly and effectively cohort all residents.
• The facility should conduct all resident and staff testing properly.

If visitors are unable to comply with the above core principles, facilities should not permit visitors to enter the facility or should ask them to leave. Facilities should utilize physical barriers during visitation to further reduce the risk of transmission. The facility should enable all visits to be conducted with an adequate degree of privacy.

Visitation should continue to be conducted outdoors whenever practical because the increased space and airflow reduces the risk of transmission. Outdoor visits may not be practical if there are adverse weather conditions, special considerations due to the individual resident’s health status, or special considerations due to the facility’s outbreak status. Facilities should routinely facilitate outdoor visitation and should create safe and accessible spaces outdoors where such visitation can be conducted. Facilities should limit the number and size of visits occurring simultaneously and the number of visitors seeing a resident at one time to support infection prevention.

Facilities should accommodate indoor visitation based on the following guidelines:

• If there have been no new onset COVID-19 cases in the facility within the last 14 days and the facility is not actively conducting outbreak testing;
• Visitors are able to adhere to the core principles above and facilities are able to provide staff to monitor visitors who have difficulty adhering to core principles, such as children;
• Facilities limit the number of total visitors and visitors seeing a specific resident at one time. Facilities should consider scheduling visits for a set amount of time to allow all residents to receive visitors;
• Facilities limit movement within the facility. Visitors should go directly to and from the visitation area and should go nowhere else in the facility;
• Facilities should enable in-room visitation when the health status of a resident prevents the resident from leaving her room; and
• Facilities should not allow visits for residents who share a room to occur in the resident’s room.

If the county positivity rate for the county the facility lies in qualifies as High (greater than 10%), facilities should only allow indoor visitation in compassionate care situations. Compassionate care situations include, but are not limited to:

• End of life situations;
• A resident who was recently admitted to the facility after living with family is struggling with the change in environment;
• A resident grieving a friend or family member who recently passed away;
• A resident who needs encouragement with eating and drinking is experiencing weight loss or dehydration; and
• A previously socially active resident is experiencing emotional distress, seldom speaking, or is frequently crying.

Any person may participate in compassionate care visits who can meet the resident’s needs. Social distancing rules should govern. However, if during a compassionate care visit, the facility and resident identify a way to facilitate personal contact, the facility may allow such contact for a limited time while adhering to all appropriate infection prevention guidelines.

CMS encourages facilities in Medium or High positivity rate counties (5% or greater) to test all visitors. Facilities should prioritize tests of routine or frequent visitors. Facilities can also encourage visitors to be tested within 2-3 days of their visits and bring the proof of the negative test result and the date of the test with them to their visit.

Limitation of Visitation

Facilities may no longer restrict visitation without a reasonable clinical or safety reason. Facilities should consider their county positivity rate, COVID-19 status, the resident’s COVID-19 status, visitor COVID-19 symptoms, a visitor’s lack of adherence to proper infection control practices, or other relevant factors when deciding whether or not to restrict visitation. If a facility has had no COVID-19 cases in the last 14 days and its county positivity rate is Low or Medium (10% or lower), the facility must facilitate in-person visitation. Residents on transmission-based precautions should only receive visits virtually, through windows, or in-person during compassionate care situations with strict adherence to transmission-based precautions.

Use of CMP Funds to Facilitate Visitation

Facilities may now apply to use CMP funds to help facilitate these in-person visits. CMS will approve use of these funds to purchase tents or clear physical dividers. This funding is limited to $3,000 per facility.

Conclusion

This updated guidance will require facilities to facilitate in-person visitation as much as possible. Facilities should continue to hold the health and safety of residents paramount, but CMS has made clear that the emotional and physical well-being of nursing home residents requires expanded in-person visitation.

If you or your practice have any questions about this proposed rule or would like assistance submitting a comment, please contact Peter Mellette, Harrison Gibbs, or Elizabeth Dahl Coleman at Mellette PC.

This client alert is for general educational purposes only. It is not intended to provide legal advice specific to any situation you may have and does not cover all the provisions of the new guidance. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice.