DOH Answers Questions on Personal Caregiving Regulations and Contractor Testing
The Department of Health (DOH) has responded to some questions regarding routine testing of fully vaccinated contractors and regarding the personal caregiving visitation regulations. The full text of the questions and answers (Q&As) sent via email on June 18th, as well as an earlier email, is set forth below.
In summary, the Department instructed that fully vaccinated contractors, vendors, and beauticians do not have to be tested routinely. They must be screened for signs and symptoms, regardless of vaccination status, and must not work in COVID-19-positive units. They must also adhere to the core principles of infection prevention, which include the use of personal protective equipment (PPE), hand hygiene, and social distancing to the extent applicable.
DOH's answers regarding personal caregiving visitors were less clear-cut. One of the June 18th Q&As conflicts with emails from the Department that we received both shortly before and immediately after the June 18th Q&As. In addition, that Q&A is inconsistent with DOH and Centers for Medicare and Medicaid Services (CMS) visitation guidance. We have tried to reconcile the conflicting emails and guidance regarding personal caregiving visitation. Our best synopsis of the Department's position is that:
- Personal caregiving visitors must be permitted in facilities, regardless of general visitation restrictions, but they are not permitted to visit residents of affected units during outbreaks or residents on transmission-based precautions (TBP). Only compassionate care visitors providing compassionate caregiving visits to qualifying residents are permitted to visit residents of affected units during outbreaks and residents on TBP.
- Facilities may impose limits on personal caregiving visitation in order to adhere to infection prevention principles, but must document the rationale for those limitations.
- Personal caregiving visitors are permitted, but are not required, under the regulations, to provide personal care (e.g., bathing, feeding) if such services would support the resident’s mental, physical, or social well-being. These services do not relieve the ACF or nursing home of their regulatory responsibilities to provide required services, nor would they serve to change the retention standards for an ACF resident.
- A personal caregiving visitor must be a family member, close friend, or legal guardian of a resident who is designated by such resident or such resident’s lawful representative and may be paid only if they fall into one of these categories.
LeadingAge NY understands, and in fact raised several times with the Legislature, that the term “personal caregiver” is confusing. The intent of the legislation, we believe, was for the “caregiver” to be able to provide support to the resident, not to provide “personal care” – a defined service for which aides are trained in New York. Although personal or compassionate caregivers may provide that type of support (e.g., bathing, feeding) if such services would support the resident’s mental, physical, or social well-being, LeadingAge NY reminds members that the facility is ultimately responsible for the health and safety of the resident. Personal caregiving visitors may be incapable of properly providing personal care, such as feeding or bathing, to residents. Under the regulations, they should be providing only care that supports the resident's mental, physical, or social well-being. Personal caregiving visitors should not be authorized to deliver personal care services to the resident if they are not capable of providing those services in a manner that meets those goals.
June 18th Testing Q&As
DOH provided the following answers regarding routine testing:
- Question: Do fully-vaccinated contractors/vendors (e.g., hospice staff, elevator repair, cable, maintenance) need to be tested prior to entry to the facility?
- Response: If the contractor/vendor is fully vaccinated, they would not require testing as previously stated in guidance. All staff, volunteers, contractors, visitors, etc. MUST be screened regardless of their vaccination status for signs and symptoms of COVID-19. In addition, contractors should not be performing work/activities on COVID positive units. All individuals entering nursing homes and adult care facilities must adhere to the core principles of infection prevention and control.
- Question: Does a fully vaccinated, employed beautician need to be tested within 24 hours prior to providing services in a nursing home and within 7 days prior to services in an ACF?
- Response: Please refer to the current June 10, 2021 guidance. Again, all visitors, contractors, vendors, etc. who are fully vaccinated would not be subject to routine testing. Screening, however is required and all individuals entering nursing homes and adult care facilities must adhere to the core principles of infection prevention and control.
- Question: Do fully-vaccinated hair salon contractors need to be tested daily in a nursing home and within 7 days in an ACF?
- Response: Please refer to the responses provided above.
June 18th Personal Caregiving Visitors Q&As
DOH provided the following answers to questions regarding personal caregiving visitors:
- Question: What is the difference between a personal caregiving visitor and a typical visitor at this time? Does a personal caregiving visitor have more access to the facility or to his/her loved one than other visitors at this time? If so, what additional access does a personal caregiving visitor have?
- Response: Personal caregiving visitors are specifically designated by the resident, and therefore differ from general visitors of a resident who have not been specifically designated as a personal caregiving visitor. As detailed in the new 10 NYCRR 415.3(d)(3) (for NHs) and 18 NYCRR 485.18 (for ACFs), personal caregiving visitation regulations must be followed by the facility when there is a declared public health emergency, and such designated visitors must be permitted notwithstanding general visitation restrictions in the facility. (Note: Please see Follow-Up Q&A and June 3 Q&A for more information regarding impact of outbreaks and transmission-based precautions).
- Follow-Up Question: We previously asked DOH whether a nursing home that is in outbreak status must allow personal caregiving visitors into the affected unit(s) even though CMS guidance would prohibit visitation, and we received the following answer:
“Consistent with current CMS and NYSDOH visitation guidance, the emergency visitation regulations would not permit a personal caregiving visitor to visit a resident who is on Transmission Based Precautions until such time a resident is removed from such precautions; however, if the personal caregiving visitor is providing compassionate caregiving, as defined in the new 10 NYCRR 415.3(d)(4), such visitor must be permitted into the facility provided they meet the screening standards set forth in section 415.3(d)(4)(iii).”
Based on this response, it appears that personal caregiving visitors are not permitted to visit residents who live in units that are on outbreak status. Is that correct? It is our understanding that DOH and CMS would prohibit indoor personal caregiving visitation with residents living in affected units during an outbreak. We believe that DOH also prohibits outdoor visitation with residents in an affected unit during an outbreak, although we believe this is not warranted for residents who are fully-vaccinated, tested negative, and not exhibiting symptoms. Are personal caregiving visitors permitted to have outdoor visits with residents who live in units on outbreak status?
- Response: Your summarization of the visitation restrictions is correct. The only visits allowed during an outbreak under the current guidelines (attached) are compassionate care visits. If the caregivers’ visits do not meet the criteria in the guidelines, they are not permitted during an outbreak.
- Question: Is this intended to permit family members and loved ones to provide personal care-such as bathing?
- Response: Per the governing statute, personal caregiving is defined as care and support of a resident to benefit such resident’s mental, physical, or social well-being, and compassionate caregiving is defined as personal caregiving provided in anticipation of the end of the resident’s life or in the instance of significant mental, physical or social decline or crisis (see PHL § 2801-h[1][a-c], SSL § 461-u[1][a-c]). If bathing is provided to support the resident’s mental, physical, or social well-being, than [sic] such may be provided by the personal caregiving visitor, but in no event may the personal care provided by the visitor replace the required care a NH or ACF is mandated to provide.
- Question: The regulations reference assistance with feeding. Is it intended that these regulations allow family members to feed residents in nursing homes? ACFs?
- Response: See response immediately above.
- Question: The recent ACF visitation regulations seem to loosen the restrictions as it relates to masking and social distancing in the event that the resident and visitor are fully vaccinated. How does this interact with these new regulations and requirement for social distancing and PPE?
- Response: Current DOH guidance relating to infection control protocols in congregate settings, including social distancing and mask usage requirements, must be followed. The personal caregiving visitation regulations direct NHs and ACFs to adhere to current DOH infection control guidance (or in the absence of such guidance, to CDC and CMS guidance).
- Question: Can the personal caregiver or the compassionate caregiver be a paid person designated by the resident/family? In other words, if the resident or representative selects a private aide/paid companion, must the ACF or NH permit this? Should there be limitations on this—such as what that person can do, whether they need to have criminal history record checks, training, certification, etc.
- Response: According to the statute, a “personal caregiving visitor” means a family member, close friend, or legal guardian of a resident designated by such resident, or such resident’s lawful representative, to assist with personal caregiving or compassionate caregiving for the resident.
- Question: The reg requires the facility to establish the frequency and duration of visits, but also requires facilities to ensure that residents are able to have visitors at their desired frequency and length of time. What if these two imperatives (and the imperative to implement effective infection prevention measures, avoid over-crowding, and afford roommates privacy) conflict
- Response: Facilities must develop policies and procedures that balance both resident rights and infection control requirements in place at the time. The facility should consult with its legal counsel to determine how best to balance these interests and diligently document the reasons for the decisions made in internal records should DOH surveyors request such.
- Question: It appears that personal caregiving visitors are not permitted to visit residents who live in units that are on outbreak status. Is that correct?
- Response: Your summarization of the visitation restrictions is correct. The only visits allowed during an outbreak under the current guidelines (attached) are compassionate care visits. If the caregivers’ visits do not meet the criteria in the guidelines, they are not permitted during an outbreak.
June 18th Q&A on Staff Break Rooms
- Question: Will vaccinated staff be able to eat together now?
- Response: Based on our current guidance and CMS QSOs, there is nothing specifically banning NH staff from dining together, however if staff are dining together, they must still adhere to core principles of infection prevention and control.
Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838