DOH and CMS Nursing Home Visitation Guidance Conflict: What Should Nursing Homes Do?

The Centers for Medicare and Medicaid Services (CMS) issued revised nursing home visitation guidance last week that is inconsistent with New York State Department of Health (DOH) guidance. LeadingAge NY has created a comparison between the two documents, available here. Some of the major inconsistencies are:

• CMS requires nursing homes to facilitate visitation unless there is an adequate clinical or safety reason to restrict it. It allows outdoor visitation even in an outbreak and even when county positivity is higher than 10 percent. DOH guidance appears to prohibit both indoor and outdoor visitation (except for compassionate care visits) when the facility is in outbreak status or community positivity exceeds 10 percent.
• CMS allows indoor visitation when a facility is in outbreak status, provided that the outbreak is limited to a single unit. DOH prohibits indoor and outdoor visitation, facility-wide, when a facility is in outbreak status, except for compassionate care visits.
• CMS allows indoor visitation even in counties with a positivity rate of over 10 percent unless the resident is unvaccinated and the vaccination rate of residents in the facility is less than 70 percent. DOH prohibits visitation in facilities in counties with a positivity rate in excess of 10 percent, except for compassionate care visits.
• CMS guidance encourages facilities to offer testing to visitors but prohibits the imposition of a testing or vaccination requirement as a condition of visitation. DOH requires visitors to present a negative test result or proof of vaccination in counties with a positivity rate of over 5 percent, except for compassionate care visits. 
• Both CMS and DOH allow compassionate care and Long-Term Care Ombudsman visits even when visitation is otherwise suspended. However, CMS's approach to compassionate care visits is more flexible than the DOH approach. DOH includes the compassionate care visits under its 20 percent cap on visitors.

LeadingAge NY has pointed out the inconsistencies between the documents to DOH and asked them to adopt the CMS guidance in order to eliminate inconsistencies and confusion. While waiting for a DOH response, nursing homes should attempt to comply with both guidance documents. To the extent that they directly conflict, we recommend complying with the DOH guidance while keeping in mind the CMS requirement to facilitate visitation unless there is adequate reason to restrict visitation related to clinical necessity or resident safety.

In particular, nursing homes in counties with a positivity rate of less than 5 percent should be aware that they may be at risk of citation under the CMS guidance if they mandate a negative test or vaccination as a condition of visitation. DOH does not mandate that visitors present a negative test result or proof of vaccination in those counties. Accordingly, facilities in those counties are not able to justify a testing or vaccine requirement by pointing to a DOH requirement.

LeadingAge NY will keep members apprised of any updates on these issues from DOH.

A CMS graphic on visitation targeting family members of residents is available here. Please note that this graphic describes the CMS visitation guidelines, not the DOH guidelines.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838