CMS Issues ‘Frequently Asked Questions’ Document On Nursing Home Visitation

Written by: Drew Graham, Esq. and Laura Hall Cartner, Esq.

On June 24, 2020, the Centers for Medicare & Medicaid Services (“CMS”) issued an updated set of Frequently Asked Questions (“FAQs”) regarding nursing homes and safe visitation to residents. While explicitly encouraging nursing homes to work with state and local authorities to maintain safety, CMS clearly supports visitation efforts under specific conditions.

Steps Prior to Reopening

CMS recommends that nursing homes follow the guidelines of their specific states, not reopening to visitors until phase three. Nevertheless, CMS envisions facilities opening when:

• There have been no new, nursing-home-onset COVID-19 cases at the facility for at least 28 days (phase one and phase two),
• The facility is not experiencing staff shortages,
• The facility has adequate supplies of personal protective equipment,
• The facility has adequate supplies of cleaning and disinfection material,
• The facility has adequate access to testing for COVID-19, and
• Local hospitals have bed capacity in intensive care units and general wards.

Compassionate Care Situations

Earlier guidance from CMS recommended allowing visitation only for “compassionate care situations”, but CMS now clarifies that such visits may include more than end-of-life situations. While confirming that compassionate care visits should not become routine, CMS provides two examples where visitation could be permitted:

• A traumatized resident who was living with family members before recent admission to a nursing home, or
• A resident whose friend or family member recently passed away.

Compassionate care visits should be conducted with appropriate actions to prevent the transmission of COVID-19, including:

• Screening all visitors for COVID-19 symptoms,
• Practicing social distancing,
• Performing hand hygiene, and
• Wearing of masks by both residents and visitors.

Creative Solutions for Visitation

CMS encourages facilities to use creative means to connect residents and family members, even before nursing homes reach phase three. Creative visits might include outdoor sessions in courtyards, on patios, or in parking lots, maintaining an appropriate number of simultaneous sessions, number of visitors, and duration of visits. As with compassionate care visits, creative visits should be conducted with appropriate actions to prevent transmission of COVID-19.

Creative Additions to Activities

CMS notes that it does not require the cessation of all communal activities in nursing homes. Rather, when social distancing can be maintained, CMS supports group activities for residents who have fully recovered from COVID-19 and for those not currently isolated for observation, suspected, or confirmed COVID-19 status. Group activities that can be conducted with appropriate social distancing include book clubs, crafts, movies, and Bingo.

Effect of Testing on Residents and Visitors

Even after nursing homes begin reopening, CMS recommends that certain residents and visitors be kept from gathering, including:

• Residents with confirmed active cases of COVID-19,
• Residents in isolation for observation after having symptoms consistent with COVID-19,
• Visitors who have tested positive for or have symptoms consistent with COVID-19 until they have experienced three days with no fever, an improvement in respiratory symptoms, and ten days since symptoms first appeared (or, if asymptomatic, since they were first tested).

CMS notes that negative tests are not necessarily conclusive, because residents or visitors might have become infected since the test was administered.

Alternatives to In-Person Visitation After Reopening

CMS notes that residents can still connect with visitors, even if they don’t meet the guidelines set forth above. Civil Money Penalty reinvestment funds may be used to provide adaptive communication technologies for residents, enabling virtual visits. In addition, staff may assist residents with sending and/or reading emails and texts from friends and family.

CMS also directs residents, families, and friends to the Centers for Disease Control and Prevention’s guidance on supporting residents who can’t be visited. That document lists a variety of activities and methods to support residents, including:

• Technology (video chats, emails, text messages, phone calls, etc.),
• Cards and letters,
• Recorded video messages,
• Visits through glass windows,
• Visuals to express care (parades of cars, ribbons around trees, posters, banners, etc.),
• Care packages (containing photos, cards, drawings, snacks, books, magazines, puzzles, etc.), and
• Dedications on in-house cable channel and intercom systems to share songs or anecdotes.

Role of the Ombudsman

Finally, CMS notes that nursing homes are still required to give the state ombudsman access to any resident (by phone or other format if infection control concerns prevent an in-person visit.) The ombudsman can examine the resident’s medical, social, and administrative records. While CMS waived some requirements about discharging residents to prevent transmission of COVID-19, facilities must comply with all discharge requirements in other circumstances, including the requirement to send notices to the ombudsman.

Conclusion

CMS’s FAQ document clarifies many issues about nursing home visitation in the age of COVID-19. It is not, however, a comprehensive document. We remain available to help you develop and implement appropriate policies during this volatile time.