Facing further confusion from skilled nursing facilities and families amidst the current spike in COVID cases in the United States, the Centers for Medicare & Medicaid Services (“CMS”) released additional best practices and addressed more issues that skilled nursing providers should follow as they encounter certain visitation scenarios.

On January 6, 2022, CMS updated and added several questions and answers in its December 23, 2021 release titled “Nursing Home Visitation Frequently Asked Questions (FAQs)” (collectively “Revised CMS FAQs”) all of which are intended to provide clarifications to the revised memorandum that the Quality, Safety & Oversight Group at CMS issued on November 12, 2021, entitled “Nursing Home Visitation” (“CMS Visitation Memo”) that announced updated visitation standards for nursing homes. Our prior alert on prior CMS guidance is here.

The key revisions and additions in the Revised CMS FAQs include:

State and Local Health Department Restrictions

CMS emphasized that states may instruct skilled nursing facilities to take additional measures, beyond those in the CMS Visitation Memo to make visitation safer, while ensuring visitation can still occur. This includes requiring that, during visits, residents and visitors wear masks that are well-fitting and with better protection.

The revised CMS FAQs also provide that skilled nursing facilities should continue to consult with state and local health departments when outbreaks occur to determine when modifications to visitation policy would be appropriate. CMS called for states to work with CMS on specific actions related to additional measures they are considering.

Spiking Cases and Visitation

CMS confirmed that, despite the rise of COVID cases due to the Omicron variant, CMS is concerned about the effects of isolation and separation of residents from their loved ones. CMS believes it is critical for residents to receive visits from their friends, family and loved ones in a manner that does not impose on the rights of another resident.

Resident Rights and Visitation

Even though COVID cases are currently increasing, CMS confirmed that 42 CFR Sections 483.10(f)(2) and (4) state that residents have the right to make choices about significant aspects of their life in the facility and the right to receive visitors, as long as it does not infringe on the rights of other residents.

As long as a visit does not increase the risk of COVID for other residents, the resident still has the right to choose to have a visitor. CMS emphasized that as long as the resident is aware of the risks of the visit, and the visit is conducted in a manner that doesn’t increase the risk of COVID transmission for other residents, the visit must still be permitted in accordance with the requirements.

Enhanced Recommended Visitation Protocols

CMS acknowledged that visitation can occur regardless of the visitor’s vaccination status. CMS detailed suggestions for how to conduct visits that reduce the risk of COVID transmission, including:

  • Creating dedicated visitation space indoors;
  • Hosting the visit outdoors, if possible;
  • Permitting in‑room visits when the resident’s roommate is not present;
  • Resident and visitor should wear a well-fitting mask, preferably those with better protection;
  • Perform frequent hand hygiene;
  • Restricting the visitor’s movement in the facility to only the location of the visit;
  • Increasing airflow and ventilation;
  • Cleaning and sanitizing the visitation area after each visit; and
  • Providing signs in common areas to remind everyone to maintain physical distancing, perform hand hygiene and wear well-fitting masks.

Practical Takeaways

  • Skilled nursing facilities should document their discussions with the local health department, and the actions they took to attempt to control the transmission of COVID.
  • Skilled nursing facilities should adopt as many of the listed CMS visitation best practices and document those efforts.
  • Skilled nursing facilities should document all efforts to educate and communicate with families and residents on visitation, best practices and risks.
  • Skilled nursing facilities need to document all of their efforts taken to facilitate visitation.