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CMS and DOH Issue Competing Visitation Guidance

The Centers for Medicare and Medicaid Services (CMS) and the New York State Department of Health (DOH) issued separate and inconsistent guidance documents last week to inform nursing home visitation practices. The CMS guidance, issued in a Quality Safety and Oversight (QSO) Memorandum to State Survey Agencies, recognizes the physical and emotional toll on residents of the prolonged separation from loved ones. It seeks to promote person-centered visitation in nursing homes and prohibits nursing homes from imposing restrictions on visitation without a "reasonable clinical or safety cause." By contrast, the DOH guidance imposes a series of conditions on nursing homes before they can initiate visitation and requires nearly all visitors to present a "negative test result within the last week." Notably, the DOH guidance reduces the visitation suspension period after a new COVID-19 case from 28 days to 14 days. LeadingAge NY has asked DOH to align its guidance more closely with the CMS approach and to clarify for facilities its expectations in areas where the two authorities are inconsistent.

The DOH guidance was first issued on Sept. 15th and then updated on Sept. 17th. The updated guidance eliminates the visitor testing requirement for end-of-life visits, allows children to visit, and delays for one week (until Sept. 24th) the visitor testing requirement for facilities that had already opened for visitation. Nursing homes are advised to read both the DOH and CMS guidance thoroughly. The following is a high-level summary of some of the key differences between the two sets of guidance. This LeadingAge NY chart offers a more detailed summary.

14-Day Suspension After a Positive Case

DOH requires a 14-day suspension of both indoor and outdoor visitation after a new onset COVID-19 case in the facility, whereas CMS requires a 14-day suspension after a new onset COVID-19 case only for indoor visitation. In addition, under the CMS guidance, in order to host indoor visitation, the facility must not be currently conducting outbreak testing. Outdoor visitation, according to CMS, should be facilitated routinely.

Visitor Testing

CMS encourages testing of visitors to facilities in counties with medium to high positivity rates (>5 percent), if feasible. It does not require visitor testing. DOH, by contrast, requires visitors to present a negative test result within the last seven days. End-of-life and compassionate care visits do not require a negative test result.

Location of Visitation

CMS and DOH both permit indoor and outdoor visitation, although outdoor visitation is preferred. Both require measures to ensure social distancing, face covering, and hand hygiene. DOH limits the number of visitors in an indoor space at any time to 10 and requires the space to be well-ventilated. CMS also requires nursing homes to afford an "adequate degree of privacy." CMS does not prohibit in-room visitation unless the resident is sharing a room, in which case it is allowed if the health status of the resident prevents leaving the room and infection prevention principles are followed. DOH prohibits in-room visitation except for residents who are bed-bound or at the end of life and for pediatric residents in a dedicated unit.

Number of Visitors

CMS requires facilities to have a process to limit the number and size of outdoor visits occurring simultaneously to support safe infection prevention actions. For indoor visits, it requires facilities to limit the number of visitors per resident at one time and limit the total number of visitors in the facility at one time (based on the size of the building and physical space). DOH imposes more specific numeric limits on visitors. Under the DOH guidance, the number of visitors to the nursing home must not exceed 10 percent of the resident census at any time, and only two visitors are allowed per resident at any one time. In addition, as noted above, indoor visits must be limited to no more than 10 individuals in the designated space.

Child Visitors

The DOH guidance was updated on Sept. 17th to allow visitors under age 18, if they are accompanied by an adult age 18 or older. The CMS guidance does not address child visitors, but provides that visitors who are unable to comply with infection prevention practices should not be permitted to visit and should be asked to leave.

Compassionate Care Visits

CMS embraces a broad approach to compassionate care visits that extends beyond end-of-life situations. The CMS guidance includes several examples of compassionate care visits involving residents who are distressed or failing to thrive, but are not at the end of life. The DOH guidance, by contrast, allows compassionate care visits without test results, but does not define compassionate care. Earlier DOH guidance appeared to limit such visits to visitors who are "essential to the care of the patient or [ ] providing support in imminent end-of-life situations or for family members of residents in imminent end-of-life situations, and those providing Hospice care."

Group Activities and Communal Dining

The CMS guidance authorizes group activities and communal dining, provided that facilities adhere to its infection prevention principles, including social distancing. The DOH guidance appears to authorize small group activities with social distancing only when the facility meets the conditions to open for visitation and notes that communal dining continues to be suspended.

Health Care and Other Service Providers

CMS requires nursing homes to allow a variety of health care workers and service providers to enter facilities, provided that they are not subject to a COVID-19-related work exclusion or show signs or symptoms of COVID-19. These providers include hospice workers, emergency medical services (EMS) personnel, dialysis technicians, laboratory technicians, radiology technicians, social workers, clergy, etc. The DOH guidance addresses "non-essential personnel" and allows them to enter only if the facility meets all of the conditions to open for visitation.

LeadingAge NY has reached out to staff at DOH and in the Governor's Office to elicit clarification and alignment of the State's approach with the CMS approach.

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