Just in time for the holidays, new federal guidance allows nursing home residents and their visitors to enjoy visits in comfort and safety. Citing the successful rollout of COVID-19 vaccines for nursing home residents this year, the Centers for Medicare and Medicaid Services (CMS) on Nov. 12 issued updated guidance allowing indoor visitation of residents at all times and for any reason, while facilities must still maintain safety precautions to protect residents and staff members from contracting COVID-19. In addition, effective Nov. 5, 2021, all nursing home facility staff members now must be vaccinated against COVID-19 as a requirement for participating in Medicare and Medicaid programs.

As you know, we’ve been updating you on visitation policies at long-term care facilities (LTCs) since the start of the pandemic in 2020. Due to the vulnerable nature of nursing home residents, along with the high risks of infection inherent with communal living, COVID-19 caused severe impacts at LTCs, including high rates of infection and, sadly, thousands of resident and staff member deaths. Originally, CMS issued visitation restrictions in March 2020 through March 2021, effectively banning visitation by all visitors and non-essential healthcare providers, except for end-of-life and certain compassionate care visits.

However, since early 2021, millions of residents and staff members have received COVID-19 vaccinations. Currently, CMS reports that about 86% of nursing home residents and 74% of staff are now fully vaccinated, and the number of infections at long-term care facilities has gone down by about 80 percent since January 2021. Concerned that staff vaccination rates are significantly lower than resident rates, CMS issued a new regulation in early November 2021 to protect residents, requiring that all staff members, providers and suppliers are to be vaccinated against COVID-19 as a requirement for participating in the Medicare and Medicaid programs.

With the greater access for visitors and residents, facilities must still maintain and adhere to the core principles of infection prevention that have been in place since the start:

• Excluding access to visitors who have a positive test for COVID-19, symptoms of the virus or those who currently meet the criteria for quarantine;
• Screening all visitors for these exclusions above;
• Providing hand sanitizer;
• Requiring face masks and physical distancing of at least six feet in accordance with CDC guidance;
• Posting signs throughout the facility about the symptoms of the virus;
• Cleaning/disinfecting designated visitation areas and high-traffic areas;
• Requiring staff use of personal protective equipment (PPE);
• Separating residents who are sick or show symptoms of the virus;
• Testing staff and residents as required; and
• Other infection control processes.

Visitors who do not adhere to these principles will not be allowed to enter a facility or visit with a resident. Of course, residents may deny or withdraw their consent for a visit at any time.

The new CMS guidance supersedes its guidance from March 2021, which expanded nursing home visitation and allowed indoor visitation under certain scenarios. According to the new guidance:

• Outdoor visitation is preferred when a visitor or resident is not fully vaccinated against the virus, along with following all appropriate infection control and prevention practices.
• LTCs must allow indoor visitation at all times for all residents, and they can no longer limit the frequency and duration of visits, the number of visitors or require advance scheduling of visits, as long as the visit adheres to the core principles of infection prevention and doesn’t increase the risk of infection to other residents.
• Visitors and residents can be in close contact including touching/hugging. Physical distancing should still be maintained during peak times (mealtimes, after business hours, etc.) and visitors should be advised of the risks of physical contact with residents if they or the residents are unvaccinated.
• LTCs should avoid large gatherings of visitors in the same space at the same time when physical distancing cannot be maintained.
• Visitors should go directly to their residents’ rooms or designated visitation areas, and not walk around the facility.
• If the resident’s roommate is unvaccinated or immunocompromised, visits should not be conducted in the resident’s room.
• If the county or community level of COVID-19 transmission is high, all residents and visitors should wear face masks and maintain physical distancing regardless of vaccination status; However, even in low to moderate transmission areas, wearing face masks and physical distancing is encouraged, particularly if the resident or visitor is unvaccinated or at risk for severe disease; If the resident and visitor are fully vaccinated and not immunocompromised, they can choose not to wear masks and can have physical contact; Visitors should wear masks when around other residents and staff members/healthcare personnel, regardless of vaccination status.
• While it’s not required, facilities in areas with high transmission should test visitors or encourage visitors to get tested before visiting; LTCs may ask visitors about their vaccination status but vaccinations are not required for entry; If a visitor declines to disclose vaccination status, a face mask should be worn at all times in the facility.
• Compassionate care visits are allowed at all times for all residents.

CMS acknowledges there are still risks to residents with visitation but also recognizes that residents have the right to make their own choices regarding who they want to visit. As long as they are aware of the risks, and the visit doesn’t place other residents at risk, residents must be allowed to receive any visitors they choose.

For more information about the new visitation guidelines, please download or visit the following:

• CMS: www.cms.gov/files/document/qso-20-39-nh-revised.pdf
• National Consumer Voice for Quality Long-Term Care: https://theconsumervoice.org/issues/other-issues-and-resources/covid-19/visitation  

The Cozen O’Connor Elder Law team is available to assist nursing home residents and their family members with Medicaid and long-term care planning, advance directive/incapacity planning, estate planning, VA benefits planning and much more. Please call us at 1-800-ELDERLAW or (561) 750-3850, or contact us today.