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Nursing Facility Care During COVID-19: Where Resident Rights Meet Virus-Related Restrictions

This Bulletin is brought to you by AHLA’s In-House Counsel Practice Group.
  • October 26, 2020
  • Santosh N. Chitalia , National Health Care Associates, Inc.

By now, the public is well aware of the harm COVID-19 has inflicted upon nursing homes and their residents. Those in nursing facility leadership roles have also witnessed its impact on resident rights. SARS-CoV-2, the virus that produces the COVID-19 disease, has caused the deaths of at least 59,000 elderly and disabled individuals in nursing homes.[1] Due to the lethal nature of the virus, nursing homes have taken unprecedented action to prevent its introduction and spread—actions that may have incidentally curbed the codified rights of their residents.  

More than one million elderly and disabled individuals reside in nursing homes across the country.[2] In 1987, following growing concerns about the quality of care nursing homes provided to these residents, Congress enacted the Nursing Home Reform Act (NHRA), as part of the Omnibus Budget Reconciliation Act. The NHRA established specific resident rights set forth in §§ 1819 and 1919 of the Social Security Act (collectively, Requirements of Participation or RoPs) with which nursing homes must substantially comply as a requirement of participating in the Medicare or Medicaid program.[3] Codified at 42 C.F.R. part 483 subpart B, the RoPs ensure that nursing home residents enjoy the same rights and freedoms as all other residents or citizens of the United States without fear of interference, coercion, discrimination, or reprisal.[4] This protection includes the right to “dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility.”[5] 

Yet, with limited options to combat the virus, nursing homes needed to implement policies and protocols that ultimately infringed upon such rights. The Centers for Medicare and Medicaid Services (CMS) along with state departments of health—the same agencies that monitor nursing homes’ compliance with the RoPs—directed nursing homes to, at a minimum, bar visitors, cancel group activities and dining, and follow protocols for regular testing and cohorting.[6] Although necessary to prevent viral spread, these infection control measures posed a difficult challenge for nursing homes attempting to comply with 42 C.F.R. § 483.10. As we move into a new season of the pandemic, nursing facility leaders should review the substantial impact these restrictions have had on residents, and explore ways to remain compliant while maximizing resident rights and quality of life.

Visitation and Group Activity

The COVID-19 visitor restrictions may have had the most profound effect on a resident’s ability to “attain or maintain [his/her] highest practicable physical, mental, and psychosocial well-being.”[7] For many residents, the restrictions eliminated the primary source for comfort and connection to life outside of the nursing home. The ability to see and communicate with loved ones supports residents’ emotional health, and it further diverts residents’ attention from what illnesses or disabilities may ail them.

Section 483.10 (f)(4) of the Code of Federal Regulations provides each resident the “right to receive visitors of his or her choosing at the time of his or her choosing.” Facilities must provide “immediate access” to a resident by immediate family members and other relatives as well as others visiting at the consent of the resident.[8] While nursing homes may implement reasonable or clinically necessary limitations on visitation,[9] the COVID-related restrictions unexpectedly disrupted residents’ daily lives. With little or no notice, the restriction forced residents to rely upon technology—something foreign to many—in order to see or speak with their loved ones.

In the absence of visitors, residents typically entertain themselves through interaction with fellow residents as well as through participating in facility activities, such as games, social events, and/or religious services. Section 483.10 (f)(1) and (8) require facilities to honor the resident’s right to choose and participate in social, religious, and community activities consistent with their interests.[10] CMS and departments of health, however, also directed nursing homes to cancel communal dining and group activities. Although critical for infection control, these pandemic-related policies essentially forced residents to remain inside their rooms, thereby arguably intruding upon their rights to a dignified existence and access to persons outside of the facility.

Testing and Cohorting

Testing and cohorting further disrupted residents’ quality of life. On August 25, 2020, CMS issued an Interim Final Rule amending infection control regulations at § 483.80 to require nursing homes to test residents and staff for COVID-19.[11] In a QSO memorandum issued the next day (Memo), CMS required nursing homes to test all residents with signs and symptoms consistent with COVID-19.[12] Should a facility experience an “outbreak,”[13] facilities must test all residents, and then continue to test negative residents every three to seven days over the course of two weeks. 

Pursuant to § 483.10 (c), residents have the right to be informed of, and participate in their treatment, and have the right to refuse any treatment.[14] To ensure that nursing homes adhered to this right, the Memo mandated that nursing homes have procedures in place to address residents who refuse testing. CMS directed facilities to place symptomatic residents who refused testing on transmission-based precautions. For residents who decline “outbreak” testing, facilities must closely monitor the residents until outbreak testing is complete to ensure residents socially distance from each other, wear a face covering, and practice effective hand hygiene. Nursing homes that failed to comply with the testing protocols could be subject to citation and fines. 

Whereas these policies protected the residents’ right to refuse treatment, they did not address the effect of cohorting on residents. In order to avert spread of the virus, facilities placed residents into cohort units based upon their specific COVID-status (i.e. positive, negative, or unknown). Cohorting thus involved moving residents from their rooms, where they may have resided for months or years, to an entirely different and unfamiliar room. Under § 483.10 (e)(6), prior to a change in a resident’s room or roommate, the resident has a right to receive written notice of the change along with the reason. A sudden move to unknown surroundings, or the abrupt loss of a familiar roommate, can drastically affect long term care residents, especially those suffering from confusion and memory-related disorders, such as dementia. Testing and subsequent cohorting of residents thus formed another barrier for nursing homes to comply with residents’ rights pursuant to § 483.10.

Tips for Response and Compliance

Until nursing homes secure a safe and reliable vaccine, they must continue to enforce the COVID-related restrictions. Compliance with the restrictions does not, however, have to result in non-compliance with § 483.10. Nursing homes should consider the following measures to achieve harmony:

  • Where permitted, nursing homes must provide residents with in-person visitation. On September 17, 2020, CMS issued an updated version of QSO-20-39-NH providing nursing homes guidance for initiating in-person visitation. Referencing § 483.10 (f)(4)(v), CMS stated that “facilities may not restrict visitation without reasonable clinical or safety cause.”[15] Nursing homes should bear in mind, however, that in-person visitation comes with risks, including the disregard of social-distancing guidelines (e.g. hugging, kissing, holding hands) and absence of face coverings. Nursing homes must remain alert and take steps to ensure that residents and visitors follow all facility policies.  
  • Nursing homes should continue the regular use of virtual “visits” regardless of whether in-person visits are currently permitted. Continued offerings of virtual options will normalize virtual visits and ease transition should nursing homes revert to virtual only in the case of a resurgence.
  • Staff should frequently round patient units to engage with residents. Regular interaction provides residents with a sense of normalcy during these trying times.
  • Staff should continue to conduct improvised socially distanced activities, such as hallway bingo, puzzles, and arts and crafts.
  • Facilities should consider streaming religious programs in place of live services.

These are just a few ideas of how nursing facilities may comply with regulatory requirements notwithstanding the implementation of restrictive measures. This list is not exhaustive. Nursing homes should utilize creativity and imagination to ensure that residents are engaged and able to exercise their codified rights.

Santosh Chitalia serves as Director of Corporate Compliance for National Health Care Associates, Inc., a network of 40 skilled nursing and assisted living facilities across the northeast, and currently serves as Vice Chair of Educational Programming for the Real Estate Affinity Group of AHLA’s Hospitals and Health Systems Practice Group.

 

[1] COVID-19 Nursing Home Data, Centers for Medicare and Medicaid Services (submitted data as of week ending October 4, 2020), https://data.cms.gov/stories/s/bkwz-xpvg.

[3] 42 U.S.C. §§ 1395i-3 and 1396r.

[4] 42 C.F.R. § 483.10 (b)(1).

[5] 42 C.F.R. § 483.10 (a).

[6] Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes, CMS Centers for Clinical Standards and Quality Control, QSO-20-14-NH Memorandum (March 13, 2020), https://www.cms.gov/files/document/qso-20-14-nh-revised.pdf.

[7] 42 C.F.R. § 483.24.

[8] 42 C.F.R. § 483.10 (f)(4)(ii) and (iii).

[9] 42 C.F.R. § 483.10 (f)(4)(v).

[10] See also, 42 C.F.R. § 483.24 (c) requiring facilities to provide activities to support residents’ physical, mental, and psychosocial well-being.

[11] Interim Final Rule, Medicare and Medicaid Programs, Clinical Laboratory Improvement Amendments (CLIA), and Patient Protection and Affordable Care Act; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency (August 25, 2020), https://www.cms.gov/files/document/covid-ifc-3-8-25-20.pdf. The IFC became effective upon its publishing as CMS waived the Notice of Rulemaking on the grounds that it was reasonable and necessary in light of the public health emergency.

[12] Memorandum QSO 20-38-NH, CMS Centers for Clinical Standards and Quality Control (August 26, 2020), https://www.cms.gov/files/document/qso-20-38-nh.pdf.

[13] CMS defines an “outbreak” as a new COVID-19 infection in any health care personnel or any nursing home-onset COVID-19 infection in a resident.

[14] 42 C.F.R. § 483.10 (c)(6).

[15] Memorandum QSO-20-39-NH, CMS Centers for Clinical Standards and Quality Control (September 17, 2020), https://www.cms.gov/files/document/qso-20-39-nh.pdf.