CMS Again Revises Visitation Guidance in Nursing Facilities

In March 2020, at the beginning of the coronavirus pandemic, the Centers for Medicare & Medicaid Services (CMS) barred visitors from nursing facilities.  Since then, it has issued multiple revisions to its guidance.  On November 12, 2021, CMS wrote, “Visitation is now allowed for all residents at all times.”[1]  CMS prohibited facilities from limiting “the frequency and length of visits for residents, [and] the number of visitors” or from requiring “advance scheduling of visits.”  Frequently Asked Questions (FAQs) issued on December 23, 2021 contradicted the November guidance and allowed nursing facilities, demonstrating “good faith efforts . . . to facilitate visitation,” to restructure their visitation policies, to ask visitors to stagger their visits, and to limit the number of visitors.[2]   On January 6, 2022, CMS revised the December FAQs again,[3] as discussed below.  The changing guidance on visitation reinforces the need for enactment of the Essential Caregivers Act of 2021, H.R. 3733,[4] to recognize a category of individuals – “essential caregivers” – who may be present in a facility, providing assistance and support, during any public health emergency, despite limitations otherwise imposed on visitors.

In the January 6 revisions to the FAQs, CMS reiterates that visitation can occur during the pandemic, but also stresses that “States may instruct nursing homes to take additional measures to make visitation safer.”  States have begun to impose requirements for visitors.  For example, on January 10, Rhode Island announced new regulations[5] requiring visitors “to either be vaccinated or provide proof of a negative COVID-19 test.”[6]

CMS also now encourages facilities “to consult with state and local health departments when outbreaks occur to determine when modifications to visitation policy would be appropriate.”  Facilities should document these discussions and “actions they took to attempt to control the transmission of COVID-19.”

The January revisions to the FAQs add three entirely new questions and answers, at the end of the FAQs.  (Note: all revisions are in red italics.)  Question 10 confirms that facilities should “continue to permit visitation,” despite the spikes in infections caused by the Omicron variant: 

While CMS is concerned about the rise of COVID-19 cases due to the Omicron variant, we’re also concerned about the effects of isolation and separation of residents from their loved ones. Earlier in the pandemic we issued guidance for certain limits to visitation, but we’ve learned a few key things since then. Isolation and limited visitation can be traumatic for residents, resulting in physical and psychosocial decline. So, we know it can lead to worse outcomes for people in nursing homes. Furthermore, we know visitation can occur in a manner that doesn’t place other residents at increased risk for COVID-19 by adhering to the practices for infection prevention, such as physical distancing, masking, and frequent hand hygiene. There are also a variety of ways that visitation can be structured to reduce the risk of COVID-19 spreading. So, CMS believes it is critical for residents to receive visits from their friends, family, and loved ones in a manner that does not impose on the rights of another resident. Lastly, as indicated above, facilities should consult with their state or local public health officials, and questions about

visitation should be addressed on a case by case basis.

Question 11 reiterates federal regulations, 42 C.F.R. §483.10(f)(2) and (4), as “explicitly” stating that residents “have the right to make choices about significant aspects of their life in the facility and the right to receive visitors as long as it doesn’t infringe on the rights of other residents.”

Question 12 confirms that “visitation can occur regardless of the visitor’s vaccination status.”  It also suggests “extra precautions” that facilities “can and should take,” such as outdoor visits; “creating dedicated visitation space indoors;” permitting visitors in resident rooms when the roommate is not present; encouraging the use of a well-fitting mask, “preferably those with better protection, such as surgical masks or KN95;” offering surgical masks or KN95 masks; “increasing air-flow and ventilation,” and more.

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[1] 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, discussed in 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/ 
[2] CMS, “Nursing Home Visitation Frequently Asked Questions (FAQs)” (Dec. 23, 2021), https://www.cms.gov/files/document/nursing-home-visitation-faq-1223.pdf, discussed in CMA, “CMS Revises November Visitation Guidance after Nursing Home Industry Calls on CMS to Allow Facilities to ‘Limit, Restrict, or Prohibit Visitors’” (CMA Alert, Dec. 23, 2021), https://medicareadvocacy.org/cms-revises-november-visitation-guidance-after-nursing-home-industry-calls-on-cms-to-allow-facilities-to-limit-restrict-or-prohibit-visitors/ 
[3] CMS, “Nursing Home Visitation, Frequently Asked Questions (FAQs)” (Jan. 6, 2022), https://www.cms.gov/files/document/nursing-home-visitation-faq-1223.pdf 
[4] https://www.congress.gov/bill/117th-congress/house-bill/3733?s=1&r=81 
[5] 216-RICR-40-10-27.5, link to regulation provided in News Release, note 6, infra 
[6] Rhode Island Governor Dan McKee, “Governor McKee Announces New Visitation Measures to Protect Vulnerable Residents in Nursing Homes, Assisted Living Facilities” (News Release, Jan. 10, 2022), https://governor.ri.gov/press-releases/governor-mckee-announces-new-visitation-measures-protect-vulnerable-residents