New Visitation Guidelines Affecting Long Term Care Residents

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State and federal authorities have issued a raft of new guidance on visitation. While many of these new rules significantly relax restrictions on visitors, some questions remain regarding areas of inconsistency between the two sets of rules. On March 10 the Centers for Medicare and Medicaid Services (CMS) issued new guidance for nursing homes intended to relieve some of the harm experienced by long term care residents as a result of COVID-19-related restrictions on visitation.

Among other things, the new federal guidance urges that facilities allow responsible indoor visitation at all times and for all residents, regardless of vaccination status of the resident, or visitor, with certain exceptions for:

  • Unvaccinated residents if; 1) the COVID-19 county positivity rate is greater than 10 percent;  and 2) less than 70 percent of residents in the facility are fully vaccinated;
  • Residents with confirmed COVID-19 infection, whether vaccinated or unvaccinated until they have met the criteria to discontinue transmission-based precautions; or
  • Residents in quarantine, whether vaccinated or unvaccinated, until they have met criteria for release from quarantine.

Nearly simultaneously, the California Department of Public Health (DPH) has issued a new All Facilities Letter, AFL 20-22.6, which substantially relaxes state rules on visitation for at least some residents, although in some respects less so than the federal guidelines, and adds guidance for limited physical contact.

Confusingly, the state and federal agencies do not appear to have coordinated with one another regarding the new rules—but the position of California state authorities, for the moment, is that the new state guidelines represent the policies that facilities in California should follow.

Key provisions in the new state guidelines include requirements that facilities shall permit indoor, in-room visitation for:

  • Fully vaccinated residents no sooner than two weeks following receipt of the second dose in a 2-dose series, or two weeks following the receipt of one dose of a single-dose vaccine in “green” (unexposed or recovered) or “yellow” (exposed or observation status ) areas, regardless of the county risk tier; and
  • Unvaccinated or partially vaccinated residents in “green” (unexposed or recovered) or “yellow” (exposed or observation status) areas for facilities in Tier 2 (Red), 3 (Orange), or 4 (Yellow) counties

There is a catch, however: for indoor visitation to take place, the following conditions must be met:

  • Visitors in Tier 1 (Purple) counties for fully vaccinated residents must test negative on a POC antigen or PCR test on a sample taken within the prior two days, regardless of the visitor’s vaccination status. While facilities may offer POC antigen testing, they are not required to do so by the new AFL.
  • All visitors and residents must still wear appropriate facial covering during their visit and should maintain 6-ft physical distancing. Fully vaccinated visitors of fully vaccinated residents may have brief, limited physical contact with the resident (e.g., a brief hug, holding hands, assisting with feeding or grooming).
  • Visits for residents who share a room should be conducted in a separate indoor space or with the roommate not present in the room (if possible), regardless of the roommate’s vaccination status.
  • Full PPE must be worn for yellow zone visitation.

As long as these conditions are met, fully vaccinated visitors of fully vaccinated residents may have brief, limited physical contact with the resident (e.g., a brief hug, holding hands, assisting with feeding or grooming).

The new guidance also reiterates the rule that all facilities allow outdoor and communal space visitation options for all residents, regardless of vaccination status or the county tier, but also notes that all facilities must comply with both federal and state visitation rules and local public health guidance.

This last point is important, because it has been DPH policy not to disturb local visitation rules that are more strict than state and federal standards. This means that it is still possible that facilities in counties following more stringent local guidelines will not yet be adapting their rules to comply with the state standard.

In the case of a facility that does not adopt the new state guidelines, residents and their families should inquire what rule the facility is following regarding visitation, and ask to see the rule. If there is no stricter county public health rule but the facility still fails to adopt the new state guidelines, residents and their families may be able to challenge the facility’s policies. CANHR advocates can assist with such situations.

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