Helping Residents to Exercise Their Right to Vote During a Pandemic

With the presidential election just three weeks away, long term care and senior housing providers are receiving requests from residents and patients for assistance with requesting, marking, mailing, and delivering ballots. LeadingAge NY members are reminded that any voting assistance provided to residents and patients should be coordinated with their local boards of elections in order to ensure compliance with election laws. Contact information for county boards of elections is available here.

In addition to complying with election laws, nursing homes are subject to regulatory requirements to ensure that residents have the opportunity to exercise their right to vote. On Oct. 5, 2020, the Centers for Medicare and Medicaid Services (CMS) issued memorandum QSO-21-02-NH reminding nursing homes of this responsibility. The guidance states the following:

A resident’s rights, including the right to vote, must not be impeded in any way by the nursing home and its facility staff.

Nursing homes should have a plan to ensure residents can exercise their right to vote, whether in-person, by mail, absentee, or other authorized process. If a state has specific programs to enable nursing home residents to vote, the facility should coordinate and engage with those programs, as appropriate. This may include:

• Mobile Polling in residential facilities performed by a bipartisan team of workers; and/or
• Assistance in registering to vote, requesting an absentee ballot, or completing a ballot from an agent of the Resident’s choosing, including family representative, LTC Ombudsmen or nursing home staff (or other personnel permitted to perform these functions, per state law).

For residents who are otherwise unable to cast their ballots in person, nursing homes must ensure residents have the right to receive and send their ballots via the U.S. Postal Service, or other authorized mechanism allowed by the State or locality. CMS regulations specific to use of mail, which also apply to voting, for voting, include (emphasis added):

§483.10(g)(7) The facility must protect and facilitate that resident's right to communicate with individuals and entities within and external to the facility, including reasonable access to: (i) A telephone, including TTY and TDD services; (ii) The internet, to the extent available to the facility; and (iii) Stationery, postage, writing implements and the ability to send mail

§483.10(h)(2) The facility must respect the residents right to personal privacy, including the right to privacy in his or her oral (that is, spoken), written, and electronic communications, including the right to send and promptly receive unopened mail and other letters, packages and other materials delivered to the facility for the resident, including those delivered through a means other than a postal service

“Promptly” means delivery of mail or other materials to the resident within 24 hours of delivery by the postal service (including a post office box) and delivery of outgoing mail to the postal service within 24 hours, except when there is no regularly scheduled postal delivery and pick-up service.

Contact: Elliott Frost, efrost@leadingageny.org, 518-441-8761