Nursing Home Visitation in the Age of COVID-19

Arnall Golden Gregory LLP
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Until a few months ago, nursing homes were required under federal law to permit almost unfettered visits for their residents. Then, the world changed as an invisible tsunami swept over the globe. One of the first signs of the sobering new era we now find ourselves in was the chilling news out of a nursing home in Washington where a number of residents contracted the novel coronavirus (COVID-19). Shortly thereafter, the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Health and Human Services (HHS) indicated that 126 cases of COVID-19 were confirmed among residents, staff and visitors at that center. We would later learn that as many as 37 people connected with the nursing home had died from COVID-19.

The tragedy in the Washington nursing home is unfortunately not an isolated instance. According to the Centers for Medicare and Medicaid Services (CMS), the number of confirmed COVID-19 cases in a single Maryland nursing home grew from one case to 64 confirmed cases the next day. Some estimates place the number of nursing homes with confirmed cases in the hundreds, which is not surprising given that there are approximately 1,500 nursing homes in the U.S. Those nursing facilities are home to about 1.5 million residents, many of whom are frail and have multiple conditions of comorbidity making them even more susceptible to the aggressive COVID-19 pandemic.

CMS, along with county, state and federal health agencies acted quickly in the aftermath of the Washington calamity in an attempt to mitigate this new scourge and stem the tide of the spread of COVID-19. Among the first and most important of CMS’ recommendations was the revised “Guidance” it issued on March 13, 2020, discussed below.

CMS Guidance

In its Guidance, CMS states that “Facilities should restrict visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations, such as end-of-life.” (Emphasis in original.) But what exactly is “compassionate care” and who makes that decision? CMS notes that facilities will need to make these determinations on a “case by case basis.” So, if the spouse of a resident who is on hospice is expected to live only a few more days, can that spouse be permitted to visit with his/her dying partner? It depends.

At a minimum, when a facility is considering allowing a visitor to enter the center on the basis of the compassionate care exception, it would need to do the following:

ensure that the visitor is asymptomatic for COVID-19 (determine and document the absence of symptoms of a respiratory infection such as fever, cough, sore throat, shortness of breath or difficulty breathing);

require the visitor to perform adequate and frequent hand washing;

have the visitor wear Personal Protective Equipment (PPE) such as masks, (note that if masks are not available, a scarf or other appropriate covering for the mouth and nose must be worn while the visitor is in the building);

the visit must occur in the resident’s room or another location that the facility determines poses the least risk for possible transmission;

suggest that visitors practice “social distancing” and avoid physical contact with residents or others (i.e., maintaining a distance of six-feet and no hugging, hand-holding, or other forms of contact);

advise any potential visitors to avoid touching surfaces, to the extent possible.

On April 2, 2020, CMS issued additional guidance it developed with input from CDC, recommending temperature screenings for all visitors. As noted above, potential visitors who exhibit signs and symptoms of COVID-19 must not be allowed to enter the nursing home. This is an instance where public safety trumps individual rights and we are in the midst of a national public health emergency.

Virtual Visitation

As the old adage goes, “Necessity is the mother of invention.” Nursing homes and their entire staff – who are heroes in this painful saga – have risen to the occasion and devised alternatives to the previously routine visits that hundreds of thousands of residents were used to and depended on. Among the stop-gap measures regarding visits are the following: using social media platforms such as FaceTime or similar applications to allow for virtual visits; establishing a Skype-enhanced computer in a private (and “clean”) location to allow residents to interact with family and friends; providing a recorded message for incoming calls from family members and friends of residents, advising them of the current status at the facility; and keeping family members apprised of residents’ status, especially if there is a significant change of condition (already required under federal regulations).

The abrupt cessation of visits for all but compassionate care situations will no doubt be troubling to many residents. The tens of thousands of residents with Alzheimer’s disease or other cognitive impairments may have difficulty adapting to the sudden change in visits that they have come to rely on. Attention needs to be focused on their enhanced needs.

Some facilities are currently considering the option of treating residents with COVID-19 in a separate location. One Massachusetts facility, Beaumont Rehabilitation and Skilled Nursing Center, in agreement with the Massachusetts Department of Public Health and the University of Massachusetts Medical School is dedicating its center and its staff “for the care, treatment and rehabilitation of people who have been diagnosed with COVID-19 disease.” Other states have also encouraged nursing homes to function as COVID-19 places of care. Such a move is consistent with the Administration’s urging nursing facilities to work with State and local agencies and resources to designate facilities or units within a facility as dedicated COVID-19 sites. Regardless, facilities need to do all they can to mitigate the risk of transmission from this deadly virus.

Because we are constantly learning new things about COVID-19 and the resultant recommendations are being made almost daily, nursing homes and their operators are strongly encouraged to frequently check resources such as the CDC and CMS. Additionally, organizations such as the Society for Post-Acute and Long-Term Care Medicine (AMDA) have published useful resources, tools and clinical guidance documents as well as providing updates as they occur.

Eventually, we will get ahead of the curve and get beyond the “apex” of COVID-19. The trajectory of this horrific and devastating virus will one day slow down and no longer pose the threat it currently does. Until that happens, nursing homes will have to strictly adhere to the CMS and CDC Guidance and recommendations regarding visitation. Those recommendations have utility for all of us as we practice social distancing and try to be as prudent as possible while limiting our contact with others. As an aside, the next time you see or speak to a physician, nurse, nurse aide, or any other health care professional, remember to say “Thank you” for the heroic work they do every day.

Footnotes for this alert are available in the formatted PDF accessible below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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