Over the past year, nursing home visitation restrictions have had a dramatic toll on residents, families, staff, and administrators of our country’s skilled nursing facilities. As the Centers for Medicare & Medicaid Services (CMS) recognized in their Sept. 17, 2020, memorandum, nursing homes"have been severely impacted by Covid-19 with outbreaks causing high rates of infection, morbidity and mortality.”
In its most recent guidance on March 10, 2021, CMS continued to recognize the negative impact of social isolation and highlighted the importance of visitation. However, with the resumption of visitation, skilled nursing facilities, their residents and families face new challenges and risks.
In the guidance, CMS issued revised recommendations regarding visitation at skilled nursing facilities, which provides a detailed process for managing visitation. While the details of implementation exceed the scope of this article, several things are clear from the guidance:
Adherence to the core principals of Covid-19 infection prevention remain a high priority. Outdoor visitation is still preferred. Indoor visitation is possible “at all times” and “for all residents,” subject to specific exceptions.
Risks to Consider Before Allowing Resumed Visitation
Skilled nursing facility staff have done heroic work over the past year. While the resumption of visitation is a positive development, there are potential risks to consider.
First, facility staff must not only consider Covid-19 infection prevention, but also falls, elopement, and other significant risks associated with numerous visits occurring both inside the building and outside on facility grounds.
Second, the determination of the facility’s capacity to provide access to the greatest number of potential visitors should be considered and documented. A designated staff member should be assigned to manage the scale and scope of the visitation program.
Third, compliance with core principals of infection prevention requires cooperation from all stakeholders. Staff should be trained in appropriate intervention techniques when a recalcitrant visitor fails to follow infection prevention methods.
As visitation resumes, the guidance makes it clear that non-compliant visitors should be prohibited from visitation. CMS’s Sept. 17, 2020, memo empowered nursing staff to exclude or remove visitors who are “unable to adhere to the core principals of Covid-19 infection prevention.” This should come as a great relief to front-line staff who are faced with noncompliant visitors.
For example, while vaccinated visitors may assume that they are not required to wear face masks, the assumption is contrary to the guidance and facility staff must be equipped to address potential visitor non-compliance immediately. While families understandably want unrestricted access to their loved ones, communities must ensure compliance with infection prevention methods, even for those residents and visitors who are fully vaccinated.
CMS has made clear that visitation will be addressed as a part of the survey process. Visitation access will be scrutinized, and facilities are required to provide visitation unless there is an adequate reason to cease visitation related to clinical necessity for resident safety. As such, skilled nursing facilities must adhere to the current guidance while safely facilitating visitation to avoid negative survey results.
Visitor Attestations Are Suggested
While there are many challenges ahead, documentation and planning will undoubtedly make a difference with respect to potential future claims. We suggest the use of visitor attestations confirming visitor compliance with the core principals of infection prevention.
Attestations should be executed by all visitors both before entry and upon exit from the facility. The attestations should identify all elements of infection prevention and memorialize the visitor’s pre-visitation adherence to same.
Visitors should also execute an informed consent form upon entry, which should include an assertion that the visitor is aware of the risk of contracting Covid-19 by virtue of visiting the community and, as noted above, agrees to compliance with infection prevention protocols. The frequency and method for which informed consent forms should be executed by visitors will vary by state, but having the forms executed by all visitors is a priority. Informed consent forms should be discussed with counsel and be maintained in accordance with federal and state regulations.
Finally, skilled nursing facilities should prepare for an interruption to the new visitation protocols. The revised guidance suggests that visitation can be ceased based on one new positive resident or staff member. Facilities should plan for interruption and proactively communicate with residents and families regarding what a cease in visitation would entail.
Facilities should also preemptively prepare media statements and correspondence to families if an immediate cease to visitation is required. While the year has been long and isolation has been painful, even a brief interruption in visitation after a successful reopening would be difficult for all involved. As such, preparing for potential interruptions in advance would put families on notice that visitation interruptions are possible and eliminate future surprise.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Drew Graham, partner at Hall Booth Smith P.C. in New York City, founded the firm’s Long-Term Care practice group and advises health-care providers facing the challenges of the complex and highly regulated specialty.
Danielle Walker is an associate at Hall Booth Smith, P.C. in Saddle Brook, N.J. She focuses her practice on defending health-care systems, physicians, and other health-care providers on medical malpractice lawsuits and long-term care and aging services claims.