This post was authored by Mary Alice Jackson, Esq., of Boyer & Boyer, Sarasota, Florida. She is a Special Needs Alliance (SNA) board member and focuses her practice on special needs planning, elder law and estate planning. She is Board Certified in Elder Law by the Florida Bar.

In late March, as nursing homes and supported living facilities began locking down in response to COVID-19, SNA member Kim Dayton, Esq., wrote for the blog about the resulting concern and confusion. This is an update.

COVID-19’s well-documented rampage through long-term residential facilities and the continued danger of infection make clear why visiting restrictions remain in place. Yet one of the most traumatic effects of the pandemic has been the need to isolate residents from their family and friends. The psychological effects of being separated from loved ones can be deeply damaging.

For residents with disabilities, there have been additional challenges. Many of them have been at greater risk of infection due to their underlying health conditions. Often aware of their increased vulnerability and separated from family members, they have been prone to anxiety—sometimes exacerbating an issue that they must normally manage. If chronic coughing and/or difficulty breathing are related to their disability, they may have faced stigmatization or even inappropriate confinement.

Individuals with cognitive disabilities may have struggled to understand why the regular visits from loved ones ceased, causing emotional stress and even depression. In addition, since family members often play an important role in caring for loved ones living in understaffed facilities, their absence further placed residents at risk.

Today, in response to fluctuating levels of the virus, visiting policies are beginning to ease.

Some areas are allowing outdoor visits, while others are starting to permit indoor visits, always with appropriate screening, masks, social distancing and other protocols. Some facilities are requiring visitors to complete paperwork and sign agreements. Guidelines vary greatly from state to state, and even between communities (click here for an AARP map with visitation guidance by state).

With recent surges across the country and talk of a second wave in the fall, visitation rules may become fluid, and families should stay alert to local conditions. Don’t be afraid to call and ask the residence about the latest rules. If necessary, contact your special needs attorney for assistance in visiting a loved one in appropriate circumstances.

Federal Visitation Guidance

Here is a quick summary of the three-phase approach to managing visitations and gradual reopening that the Centers for Medicare and Medicaid Services (CMS) recommended in May and which continues to shape policy at most facilities. More complete details are available here.

Phase I – Highest Vigilance

  • Visits generally prohibited, except for compassionate care
  • Non-essential healthcare personnel prohibited
  • Limited communal dining
  • Restricted group activities
  • Avoidance of non-medically needed outside trips

Phase 2

  • Surrounding community has experienced no rebound in cases after 14 days in Phase I
  • No new nursing home cases for 14 days
  • Adequate nursing home staff, PPE equipment, cleaning and disinfection supplies
  • Referral hospital(s) have bed capacity on wards and intensive care units
    • Visitation generally prohibited, except for compassionate care
    • Limited entry of non-essential healthcare personnel/contractors
    • Limited communal dining
    • Group activities, including outings, limited to 10 people, with social distancing and masks

Phase 3

  • Community has experienced no case rebound during Phase 2
  • No new nursing home cases in the nursing home for 28 days
  • Adequate nursing home staff, PPE equipment, cleaning and disinfection supplies
  • Nursing home has adequate access to testing for COVID-19
  • Referral hospital(s) have bed capacity on wards and intensive care units.
    • Visits allowed with screening and additional precautions, such as social distancing, hand hygiene, masks.
    • Allow entry of non-essential healthcare personnel/contractors
    • Limited communal dining, as well as same-room dining, with social distancing
    • Group activities, including outings, allowed  with social distancing and masks

Recent Clarifications

The latest CMS guidance balances safety with the deeply felt need of families to be reunited after months of separation. Notably, the agency offered clarification that, while visits should generally be restricted until Phase Three, there is flexibility for “controlled visitation” and certain communal activities before then, including the possibility of outdoor visits.

In addition, they have clarified the definition of “compassionate care” situations which, along with ombudsman visits, have usually been the only non-staff visitations allowed.  Many individuals had interpreted “compassionate care” as referring to visitation of residents who were nearing the end-of-life. On the contrary, while CMS stressed that such visits should not be routine, they offered examples of other situations that might qualify. For instance, visits might be appropriate if a friend or relative passes away or if a resident has recently moved to the facility and separation from family in an unfamiliar environment could prove traumatic. The agency stressed that it could not outline all potentially appropriate situations and that facilities should make determinations in consultation with families, ombudsmen and state leadership. See CMS FAQ for more detail.

About this Article: We hope you find this article informative, but it is not legal advice. You should consult your own attorney, who can review your specific situation and account for variations in state law and local practices. Laws and regulations are constantly changing, so the longer it has been since an article was written, the greater the likelihood that the article might be out of date. SNA members focus on this complex, evolving area of law. To locate a member in your state, visit Find an Attorney.

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