In the face of the COVID-19 (“Coronavirus”) pandemic, nursing homes and in-patient hospice facilities have been faced with a new challenge of deciding whether a resident may receive certain visitors in compassionate care situations, such as end-of-life situations.
In order to protect the most vulnerable in our society, the Centers for Medicare & Medicaid Services (“CMS”) has announced new measures designed to keep nursing home residents safe from COVID-19. On March 13, 2020, CMS published a revised Memorandum offering guidance for the control and prevention of the spread of Coronavirus in nursing homes. Pursuant to the revised Memorandum, nursing homes are to significantly restrict the entry of visitors and nonessential personnel inside the facility. However, CMS carved out an exception for compassionate care, such as end-of-life situations.
According to CMS, decisions about visitation in compassionate care cases should be made on a case-by-case basis. The facility should carefully screen any potential visitor (including family members, clergy, bereavement counselors, etc.) for fever or respiratory symptoms. If a potential visitor exhibits symptoms of a respiratory infection (e.g., fever, cough, shortness of breath, or sore throat) or is unable to demonstrate proper use of infection control techniques (e.g., hand hygiene, social distancing, or use of personal protective equipment), he or she should not be permitted entry into the facility even in end-of-life situations.
If an individual is permitted entry into the facility for a compassionate situation, prior to entering, such individual should be provided instruction on proper hand hygiene, limiting surfaces touched, proper social distancing practices, and the use of personal protective equipment, such as facemasks. Any visitor should be required to perform hand hygiene and use personal protective equipment. Visitors also must be limited to a specific room within the facility, whether it be the resident’s room or another location within the facility.
CMS has clarified that, in the event New York State implements guidelines that exceeds CMS’s requirements (such as a ban on all visitation through a governor’s executive order), a nursing home can observe the state-mandated requirements and not be considered out of compliance with CMS’s requirements.
Above all, CMS recommends that nursing homes maintain a “person-centered approach” to care. Facilities should enact methods to effectively communicate with residents, resident representatives, and/or their family about steps taken to protect our most vulnerable citizens.
As a reminder, federal regulation requires nursing homes to “inform each resident (or resident representative, where appropriate) of his or her visitation rights and related facility policy and procedures, including any clinical or safety restriction or limitation on such rights . . . the reasons for the restriction or limitation, and to whom the restrictions apply . . . .” 42 C.F.R. § 482.10(f)(4)(vi). According to the New York State Department of Health, nursing homes must proactively post information about the visitation restrictions on their website and send a letter or email to the family of the resident to inform them of the visitation policy. Additional guidance from the NYS Department of Health about nursing homes and Coronavirus can be found at: https://www.health.ny.gov/professionals/nursing_home_administrator/dal/docs/dal_nh_20-04.pdf.
A complete copy of the revised Memorandum from CMS can be found at https://www.cms.gov/files/document/3-13-2020-nursing-home-guidance-covid-19.pdf.
On March 9, 2020, CMS issued guidance on controlling and preventing the spread of Coronavirus by hospice agencies. According to Medicare regulations, the focus of an inpatient hospice is to prevent and control infections. Consequently, inpatient hospices may already have policies in place dictating the visitation rights of patients. However, such facilities may wish to set additional clinical restrictions on visitation, subject to patients’ rights. If the inpatient hospice is not provided by the hospice itself, such as a hospital, that provider may implement additional visitation requirements associated with that particular setting in order to address Coronavirus transmission concerns.
If hospice care is provided in a nursing home, the facility should allow hospice workers entry into the facility provided hospice staff follow the appropriate CDC guidelines for Transmission-Based Precautions and properly use personal protective equipment.
Different precautionary measures should be implemented for individuals receiving in-home hospice care. For additional information regarding in-home hospice care, please consult an attorney.
A complete copy of the Memorandum relating to hospice agencies can be found at https://www.cms.gov/files/document/qso-20-16-hospice.pdf.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC
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