COVID-19 and Nursing Home Residents: Frequently Asked Questions for Family Members

levin & perconti coronavirus update questions

What kinds of social distancing measures are nursing homes taking at this stage of the pandemic?

CMS guidelines have eliminated all communal meals and activities to limit residents’ contact with each other and allow facilities to repurpose communal spaces (like activity rooms) to spread residents out. Likewise, CMS is prohibiting visitation by family and friends, advocates and non-essential health care providers. The only exception is for “compassionate situations,” including but not limited to end-of-life visitation. Visitors making compassionate visits will be required to wear personal protective equipment, comply with other safety measures and refrain from physical contact. Finally, a person exhibiting any respiratory symptoms whatsoever will not be allowed to visit.

Facilities should already be following longstanding CDC guidelines for infection prevention. Here are some questions that can guide your inquiry into whether they currently comply with the rules.

As with all CMS guidelines, however, we know that some facilities are failing to comply with the rules. This can lead to the heartbreaking consequences we’ve seen in recent news stories about facilities with shockingly high numbers of infection and fatalities.

If the facility won’t let me visit, are they required to arrange an alternate form of communication?

CMS is not mandating that facilities help families stay connected with residents, but they have suggested measures facilities might take, including arranging phone or video calls. Access to tablets and other devices varies, however, so it’s important to be proactive and creative to maintain open lines of communication. Not only does your loved one depend on “virtual visits” for emotional and mental well-being, but these phone calls allow you and other advocates to continue monitoring the quality of care they are receiving, and look out for red flags about failures to comply with CMS guidelines.

Are nursing homes allowed to continue admitting patients who have tested positive for COVID-19?

CMS is deferring to states’ decisions on admission of patients with COVID-19. Some states have mandated that facilities accept these patients. Other states have barred facilities from admitting them. Many states, like Illinois, have issued no guidance at all; that coupled with the absence of federal regulation essentially means that decisions about admission of COVID-19-positive patients are being made at the facility level. You have a right to know how your loved one’s facility is accepting these patients, and if so what they are doing to keep all residents safe. If your loved one has tested positive and needs to move from the hospital to a nursing home, they also have a right to high-quality care. If your facility does not have a formal policy, request that they create one as soon as possible, and follow up until they do. When necessary, rely on a legal advocate to help you get the answers you need.

Do nursing homes have to provide advance notice before they move a patient with COVID-19 to a different facility?

In most cases, CMS has waived patients’ right to notice prior to a transfer to another facility. Patients who test positive for COVID-19 may be transferred to a facility dedicated to caring for those patients. Patients who do not have the virus may be transferred to a facility where they are housing non-COVID-19 patients to decrease the chances they will be exposed to the virus. Finally, residents who may have been exposed but are showing no symptoms may be transferred to a facility for observation. All three of these transfer scenarios can happen without notifying the patient or family first. It is imperative for families to stay in communication with the director of their loved one’s facility and demand documentation regarding any transfer decisions.

Do nursing homes have to provide advance notice before they move a patient with COVID-19 to another location within the same facility?

No. For the purpose of separating COVID-19-positive and COVID-19-negative patients, CMS has waived residents’ rights to 1) share a room with another resident of their choosing and 2) refuse transfer to another area of the facility.

Can residents still file a grievance for violations of the standard of care?

Yes. The processes that were in place before the pandemic still apply. Facilities may not stand in the way of residents and their advocates communicating (though that communication will now happen remotely), documenting violations and filing grievances. As before, facilities are required to issue a written response to any submitted grievance.

My loved one’s facility has communicated their general policy for combatting the outbreak, but I have specific questions about my family member’s care. How can I get more information?

Even within the high-risk nursing home population, some residents face additional risk factors that require modifications to their care plan. If your family member has pre-existing immune compromise, respiratory issues, a condition that requires a high level of face-to-face contact with health professionals or a care routine that requires travel to outside facilities (such as for dialysis), ask the care team to provide a written plan that accounts for these special needs. If the facility will not provide this plan, or if you find the plan unsatisfactory, you have the right under Illinois law to request a care planning conference to ensure that your loved one’s care takes the particular risks of COVID-19 infection into account.

When it comes to understanding a facility’s ability to handle COVID-19, how reliable is the rating system used by the Centers for Medicare and Medicaid Services (CMS)?

Unfortunately, the CMS’s Nursing Home Compare website rating system often does not provide an accurate picture of the safety of a nursing home. The Life Care Center of Kirkland, the nursing home near Seattle where 18 people who tested positive for COVID-19 have died, has a five-star rating on the website. While the agency has made some efforts to improve transparency and oversight, it has fallen far short of enforcing rules laid out in 2016 calling for facilities to develop infection control and prevention plans and hire infection-prevention specialists. The Trump administration has reduced fines and penalties for problematic nursing homes since then, and last July the administration proposed eliminating what they termed “excessively burdensome requirements,” including the mandatory infection prevention specialist position. These requirements likely do not seem excessive to anyone with a family member currently living in a nursing home.

My family member lives in an assisted living facility that does not provide health care. Which government agency inspects those facilities?

We tend to lump a few different kinds of long-term care facilities together under a single umbrella, but not all of them are regulated the same way. While nursing homes providing medical care fall squarely within the purview of the CMS, a federal agency, many assisted-living facilities that provide housing and community but not necessarily medical care for seniors are regulated by states and not the federal government. In Illinois, assisted living facilities are regulated by the Illinois Department of Public Health. This patchwork of oversight can muddy the waters about who is responsible for ensuring safety. Look up your loved one’s facility in this directory to learn more.

Will staff members who show symptoms be directed to stay home from work as a precautionary measure?

If facilities follow CMS guidelines directing ill staff members to stay home, then yes. But the majority of people who work in nursing homes are paid a low hourly wage and have limited or no paid sick leave, making it difficult to impossible for them to take time off work. And problematic ongoing practices compound the issue. For years, industry watchers have voiced concerns that facilities are understaffed, and there is reason to be concerned that they do not have adequate numbers of nursing assistants to sub for those who must stay home to get well and prevent the spread of the virus.

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