Long-term care providers that have been clamoring for updated guidance from the Centers for Medicare and Medicaid Services (CMS) and Centers for Disease Control and Prevention (CDC) to address the effect of COVID-19 vaccination status on nursing home testing, visitation, and communal activities finally got their wish when the agencies, in tandem, released that guidance on April 27, 2021.
CMS revised two existing QSO memoranda—QSO-20-38-NH (“Memorandum 38”), originally published on August 26, 2020, that addresses testing of residents and staff1, and QSO-20-39-NH (“Memorandum 39”), originally published on September 17, 2020, and first revised March 10, 2021, that addresses visitation and communal activities. For its part, the CDC updated its Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination web page (“CDC Guidance”).
Memorandum 38 and the CDC Guidance discuss testing of vaccinated2 and unvaccinated3 staff and residents in various circumstances.
Testing residents with COVID-19 symptoms or signs – Residents must be tested immediately, regardless of vaccination status. CMS expects that such residents should be placed on transmission-based precautions pending the results of the testing.
Testing residents with exposure to SARS-CoV-2 – Memorandum 38 defers to the CDC Guidance.
- Residents that have had prolonged close contact4 with an individual confirmed to have SARS-CoV-2 infection should have a series of two viral tests, regardless of vaccination status. The first test should be administered immediately after exposure. The second should be administered five to seven days after exposure.
Facility outbreak testing – Regardless of vaccination status, residents should be tested immediately and thereafter, every three to seven days until at least 14 days after testing identifies no new infections among staff or residents.
Routine testing – Routine testing of asymptomatic residents, whether vaccinated or unvaccinated, is generally not recommended by CMS absent a change in circumstances, such as the identification of a confirmed case of COVID-19 in the facility. The CDC notes that pre-admission testing of residents is at the discretion of the facility.
Memorandum 39 and the CDC Guidance discuss visitation. Like Memorandum 38, Memorandum 39 refers to rather than restates the CDC Guidance and builds upon the visitation protocols established in the March 10, 2021 revision.
Indoor visitation – Curiously, the CDC Guidance states that indoor visitation could be permitted for all residents, and then includes a list of exceptions. This choice of language seems like an equivocation by the agency as to whether indoor visitation should be permitted and may have implications for providers during the survey process depending on CMS’s interpretation of the language. Exceptions to indoor visitation:
- Indoor visitation for unvaccinated residents should be limited solely to compassionate care if the county positivity rate for COVID-19 is greater than 10% and less than 70% of residents are fully vaccinated.
- Indoor visitation should be limited to compassionate care for both vaccinated and unvaccinated residents with SARS-CoV-2 infection until criteria for discontinuation of transmission-based precautions have been met.
- Indoor visitation should be limited to compassionate care for both vaccinated and unvaccinated residents in quarantine following prolonged close contact with someone with SARS-CoV-2 infection until criteria for release from quarantine have been met.
- Facilities having an outbreak should follow guidance from state and local health authorities and CMS.
Communal Dining and Activities
The protocols established by Memorandum 39 and the CDC seem simple on their face but have the potential to present operational challenges for providers under certain circumstances. Fully vaccinated residents may dine and participate in activities without face coverings or social distancing if all participating residents are fully vaccinated. If an unvaccinated resident is present, all residents participating in the activity or meal must wear face coverings, and the unvaccinated resident(s) must physically distance. Because of privacy concerns, the CDC recommends that providers plan ahead by having residents sign up in advance for communal dining and activities so that they can check vaccination status and assign seating. A resident whose vaccination status is unknown should be treated as if unvaccinated.
Not only does this recommendation present logistical challenges for providers given the number of meals and activities scheduled during a typical day, it also indirectly exposes residents’ vaccination status. In addition, CMS has stated in stakeholder calls that if an unvaccinated resident shows up to the dining or activity room without having signed up in advance, all residents must don face coverings. Residents may not have their face coverings readily available to use, or they may need assistance from staff to place the face covering over their nose and mouth. This likely will place a strain on staff. Further, seating must be rearranged to accommodate the physical distancing requirement for the unvaccinated resident. As a result, providers will need to have a plan in place to account for such circumstances to minimize the disruption.
Nursing homes and other long-term care providers have faced many challenges throughout the pandemic. As a whole, their creativity in finding and sharing solutions to those challenges has seen them through the maelstrom. The challenges posed by this latest guidance are no different. As noted above, however, providers will need to work through the logistical and privacy concerns and develop effective policies and procedures to address them.
 This article discusses only resident testing. A subsequent article will discuss staff testing and other staff-related guidance.
 “Vaccinated” or “Fully Vaccinated” refers to a person who is two weeks following a receipt of the second dose in two-dose series, or two weeks following receipt of a single-dose vaccine. See Memorandum 38, at page 2.
 “Unvaccinated” refers to a person who is not fully vaccinated or whose vaccination status is unknown. Id. at 3.
 Close contact is defined by the CDC as being within six feet of an infected individual for a cumulative total of 15 minutes or more over a 24-hour period.