While
researchers in Canada report that nursing home residents without contact with
family or friends during the COVID-19 pandemic were significantly more likely
to die than residents who had contact with family or friends, the nursing home
industry has called on the Centers for Medicare & Medicaid Services (CMS)
to give nursing facilities “more flexibility to temporarily limit, restrict, or
prohibit visitors from entering the facility.” Today, December 23, CMS
issued Frequently Asked Questions (FAQs) that reiterated visitation rights
announced on November 14, but qualified the rights “with very limited and rare
exceptions.” The Center for Medicare Advocacy opposes CMS’s new
qualifications to visitation rights. The Center is concerned that many
nursing facilities failed to follow CMS’s absolute guidance in November and
will exploit the December 23 FAQs to expand the “very limited and rare
exceptions” to bar or limit visitors. Vaccinations and boosters, not
barring families, are the key to preventing COVID-19 infections and deaths.
Research
Researchers
found a 34.8% increase in deaths of residents in Ontario, Canada who did not
have personal contact with family or friends during the early days of the
COVID-19 pandemic, March 14 – September 30, 2020.[1] The patterns were consistent for men and
women aged 85 and over.
CMS guidance, November 12, 2021
Last
month, citing the dramatic reduction in COVID-19 cases among residents due to
vaccinations of residents and staff, CMS revised its guidance on visits to
nursing homes and confirmed, “Visitation is now allowed for all residents at
all times.”[2] In
its November 12, 2021 revised guidance, CMS also explicitly stated, “facilities
can no longer limit the frequency and length of visits for residents, the
number of visitors, or require advance scheduling of visits.” CMS called
on visitors to follow infection prevention protocols.
Industry letter, December 17, 2021
In
a joint December 17, 2021 letter to CMS Administrator Chiquita Brooks-LaSure,
the American Health Care Association, LeadingAge, and AMDA – The Society for
Post-Acute and Long-Term Care Medicine (which is publishing the Canadian study
in its journal next month) now ask CMS to revise its November 2021 guidance to
give facilities “more flexibility to temporarily limit, restrict, or prohibit
visitors from entering the facility.”[3]
While claiming to support CMS efforts “to reduce isolation and loneliness for
nursing home residents,” the three associations argue that the Public Health
Emergency, the expected surge in the omicron variant, hospital surges, and
“[nursing home] staffing shortages [that] may lead to the inability to ensure
that safe visiting policies are being followed” are factors supporting the need
“to temporarily restrict access” to facilities. The Center for Medicare
Advocacy contends that these arguments are not new. Moreover, if nursing
homes are so inadequately staffed, as AHCA constantly reports[4] (and argued in its fourth point to CMS),
then families are needed more than ever to help provide essential care and
psychological support for residents.
CMS’s Frequently Asked Questions, December 23, 2021
In
“Nursing Home Visitation Frequently Asked Questions (FAQs)” (December 23,
2021),[5] CMS clarifies
its November 12 guidance on visitation, reiterating that “the bottom line is
visitation must be permitted at all times.” However, CMS now qualifies
this absolute statement by adding at the end, “with very limited and rare
exceptions.” In question 2, CMS explains that its guidance on ensuring
physical distancing during visits means that if physical distancing cannot be
maintained, “facilities may restructure the visitation policy, such as asking
visitors to schedule their visit at staggered time-slots throughout the day,
and/or limiting the number of visitors in the facility or a resident’s room at
any time.” CMS insists that “the facility must demonstrate that good
faith efforts were made to facilitate visitation,” but provides no guidance on
what these efforts must be.
Center for Medicare Advocacy Position
The
Center opposes the industry’s request and CMS’s December 23 qualification of
its November guidance. CMS’s banning families, friends, and other
visitors during the pandemic did not keep residents safe and free from
infection. Staff brought COVID-19 into facilities (often inadvertently,
especially at the beginning of the pandemic, before asymptomatic transmission
of the virus was understood). Moreover, barring families led to a spike
in resident deaths unrelated to coronavirus.[6] As CMS noted in November, the way
for residents to be safe from coronavirus is for residents and staff to be
fully vaccinated and boosted.
Vaccination
is the way to protect residents and staff. Giving nursing facilities the
authority to bar families is not the answer.
The
Center for Medicare Advocacy urges Congress to enact the Essential Caregivers
Act, which guarantees certain family visits, regardless of public health
emergencies,[7] and
urges CMS to revise its December 23 instructions. If CMS has now
identified a new need for limits on absolute visitation rights, which are
guaranteed by the Nursing Home Reform Law, it needs to spell out specifically
how and under what circumstances limits may be imposed. Leaving decisions
up to nursing facilities and expecting facilities to “demonstrate . . . good
faith efforts were made to facilitate visitation” are not sufficient to protect
residents.
___________________
[1] Rachel D. Savage,
et al, “Excess mortality in long-term care residents with and without personal
contact with family or friends during the COVID-19 pandemic,” Journal of the American Medical
Directors Association (2021), https://www.jamda.com/article/S1525-8610(21)01067-7/pdf
[2] CMS, “Nursing Home
Visitation – COVID-19 (REVISED),”
QSO-20-39-NH (revised 11/12/2021), https://www.cms.gov/files/docuent/qso-20-39-nh-revised.pdf
. The direction to state survey agencies is discussed at CMA, “CMS
Revises Visitation Rules for Nursing Facilities” (CMA Alert, Nov. 18, 2021), https://medicareadvocacy.org/cms-revises-visitation-rules-for-nursing-facilities/.
See also CMA,
“Updated Factsheet/CMS Nursing Home Visitation Guidance” (Dec. 2, 2021), https://medicareadvocacy.org/new-factsheet-cms-nursing-home-visitation-guidance/
[3] Dec. 17, 2021
letter to CMS Administrator, signed by signed by Karl E. Steinberg (President,
AMDA – The Society for Post-Acute and Long-Term Care Medicine), David Gifford
(Chief Medical Officer, American Health Care Association/National Center for
Assisted Living), and Katie Smith Sloan (President and CEO, LeadingAge), https://paltc.org/sites/default/files/Joint%20letter%20on%20Visitation%20AHCA-AMDA-LeadingAge.pdf
[4] AHCA, “REPORT:
Nursing Homes Down 221,000 Jobs Since Start of Pandemic; Long term care
industry facing worst job loss among all health care providers” (Press Release,
Nov. 10, 2021), https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/REPORT-Nursing-Homes-Down-221,000-Jobs-Since-Start-Of-Pandemic.aspx
[5] CMS, “Nursing Home
Visitation Frequently Asked Questions (FAQs)” (Dec. 23, 2021), https://www.cms.gov/files/document/nursing-home-visitation-faq-1223.pdf
[6] Matt Sedensky and
Bernard Condon, “Not just COVID: Nursing home neglect deaths surge in shadows,”
AP News (Nov. 19,
2020), https://apnews.com/article/nursing-homes-neglect-death-surge-3b74a2202140c5a6b5cf05cdf0ea4f32;
see also article
cited at note 1. [7]
H.R. 3733, discussed in CMA, “Bill To Recognize Essential Caregivers Introduced
in Congress” (CMA Alert, Jul. 1, 2021), https://medicareadvocacy.org/bill-to-recognize-essential-caregivers-introduced-in-congress/
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