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.
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. 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.” 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.” 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 (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), 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. 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, 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.
December 23, 2021 – T. Edelman
 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
 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/
 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
 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
 CMS, “Nursing Home Visitation Frequently Asked Questions (FAQs)” (Dec. 23, 2021), https://www.cms.gov/files/document/nursing-home-visitation-faq-1223.pdf
 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.
 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/