With just 10 words, Centers for Medicare & Medicaid Services (“CMS”) announced sweeping changes to nursing home visitation rules – “Visitation is now allowed for all residents at all times.”

On November 12, 2021, the Quality, Safety & Oversight Group at CMS issued a revised memorandum entitled “Nursing Home Visitation” (“CMS Visitation Memo”) that announced updated visitation standards for nursing homes.

Key elements of the changes made by the CMS Visitation Memo include:

Visitation for All Residents at All Times.

The CMS Visitation Memo provides that visitation is now allowed for all residents at all times. Per 42 CFR § 483.10(f)(4), a resident has the right to receive visitors of his or her choosing at the time of his or her choosing and in a manner that does not impose on the rights of another resident, such as a clinical or safety restriction (see 42 CFR § 483.10(f)(4)(v)).

Also, residents who are on transmission-based precautions or quarantine can still receive visitors.

COVID-19 Positive Visitors.

The CMS Visitation Memo Visitors states that nursing homes should adopt the following rule, a best practice to reduce the risk of COVID-19 transmission – that anyone who has a positive viral test for COVID-19, symptoms of COVID-19 or currently meet the criteria for quarantine, should not enter the facility. Nursing homes should screen all who enter for these visitation exclusions.

Indoor Visitation Guidance.

Nursing homes must allow indoor visitation at all times and for all residents as permitted under the regulations. However, the CMS Visitation Memo states that outdoor visitation remain the preferred method of visitation for residents and/or visitors who are not fully vaccinated.

Visitation Limits.

Although there is no limit on the number of visitors that a resident can have at one time, visits should be conducted in a manner that adheres to the core principles of COVID-19 infection prevention and does not increase risk to other residents.

Roommate Guidance.

If a resident’s roommate is unvaccinated or immunocompromised (regardless of vaccination status), visits should not be conducted in the resident’s room, if possible.

Face Coverings.

Visitors should wear face coverings or masks when around other residents or health care personnel, regardless of vaccination status.

In areas of substantial to high community transmission, residents and visitors should wear face masks and practice physical distancing at all times regardless of vaccination status.

In areas of low to moderate community transmission, residents and visitors are recommended to wear face masks and practice physical distancing, especially if either the resident or the visitor is unvaccinated or at risk for severe disease. If both the resident and visitor are fully vaccinated and none are at risk for severe disease, the resident and visitor may choose to remove face masks and forego physical distancing during the visit.

Inquiring About Visitor Vaccination Status.

Nursing homes may ask about a visitor’s vaccination status. However, visitors are not required to be tested or vaccinated (or show proof of such) as a condition of visitation. If the visitor declines to disclose their vaccination status, the visitor should wear a face covering or mask at all times. This also applies to representatives of the Office of the State Long-Term Care Ombudsman and protection and advocacy systems.

Compassionate Care Visit Update.

Compassionate care visits are allowed at all times. Previously during the public health emergency, there were some scenarios where residents should only have compassionate care visits.

Nursing Homes’ Ability to Restrict Visitation.

Nursing homes shall not restrict visitation without a reasonable clinical or safety cause, consistent with 42 CFR § 483.10(f)(4)(v).

A nursing home must facilitate in-person visitation consistent with CMS regulations. Failure to facilitate visitation, per 42 CFR § 483.10(f)(4), which states “The resident has a right to receive visitors of his or her choosing at the time of his or her choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident,” would constitute a potential violation and the nursing home would be subject to citation and enforcement actions.

Risks of Visitation to Visitors.

Visitors, residents, or their representative should be made aware of the potential risk of visiting and necessary precautions related to COVID-19 in order to visit the resident.

The CMS Visitation Memo urges that, if an ombudsman is planning to visit a resident who is in transmission-based protocols or quarantine, or an unvaccinated resident in a nursing home in a county where the level of community transmission is substantial or high in the past seven days, the resident and ombudsman should be made aware of the potential risk of visiting, and the visit should take place in the resident’s room.

Surveyors.

Nursing homes are not permitted to restrict access to surveyors based on vaccination status, nor ask a surveyor for proof of his or her vaccination status as a condition of entry.

Key Takeaways

  • Nursing homes need to revise their visitation policies and procedures.
  • Nursing homes should revise and adapt current practices to screen visitors upon entry.
  • Nursing homes need to retain documentation regarding the changes to and revisions of their visitation policies and procedures that have been made during the public health emergency.