Neville M. Bilimoria

Over the course of the pandemic, many nursing homes have lamented over authorities’ strict COVID-19 infection control policies and procedures — which, understandably, often have resulted in a drastic lack of visits to nursing home residents over the last year. While the measures have been necessary, several operators have claimed to us that they are sometimes more concerned with residents’ mental health issues due to isolation during the pandemic, instead of COVID-19 itself.  

The Centers for Medicare & Medicaid Services’ new guidance, issued March 10, notably increases the ability for visits in nursing homes. 

CMS acknowledged that the pain felt by facilities and their residents during the pandemic “has taken a physical and emotional toll on residents and their loved ones.”

This is good news — our nursing home clients have told us that the lack of visits has literally been “killing” their residents, and has placed residents in deep mental distress and depression. Facilities, residents and families have been forced to swallow that stark reality of isolation during the pandemic. Now, however, there appears to be help.

From a legal perspective, it is still important for facilities to check and comply with state or local guidelines, some of which may be more restrictive regarding visitations.

But there is an irony here. Even more interesting in the guidance, perhaps, are the new additions made by CMS regarding surveyors in facilities:

Federal and state surveyors are not required to be vaccinated and must be permitted entry into facilities unless they exhibit signs or symptoms of COVID-19. Surveyors should also adhere to the core principles of COVID-19 infection prevention, and adhere to any COVID-19 infection prevention requirements set by state law.

I find it alarming that during the pandemic, CMS and state public health officials have been overly critical of nursing home infection procedures, seeking to almost blame nursing homes for the sprouting of the pandemic. Everybody, including CMS, as it turns out, has looked to facilities as scapegoats at one time or another. But it is ironic that in its new guidance CMS is allowing surveyors to enter a building — nay, multiple buildings — as part of its surveying protocols, without being vaccinated. It would appear that somehow surveyors are immune from COVID-19, or at least immune from the need for COVID-19 vaccinations when surveying our facilities.  

Seems to me that if CMS were true to its word about taking infection control seriously, it would not allow surveyors to enter facilities — the same facilities that the agency has castigated in the past for infection control — without making sure their surveyors are vaccinated. Plus, the fact that surveyors are visiting multiple facilities where COVID-19 has been or may be rampant, simply adds to the risk of COVID-19 entering facilities during surveys.

So despite this surprising CMS hall pass for surveyors, facilities still need to be vigilant in protecting the residents and families they serve from those same surveyors. For example, facilities should make sure that surveyors do not exhibit COVID-19 signs or symptoms before they are allowed in the facility. Given this new guidance, it would not seem unusual for facilities to require that surveyors comply with a standard questionnaire for COVID-19 screening, and with temperature checks.

Ultimately, this new CMS guidance on visitation is important. But above all, facilities still need to maintain their vigilance with their attempts to prevent all visitors from infecting staff and residents. Hopefully, this new guidance will help caregivers provide some long-awaited relief for residents, families and everyone’s mental well-being.  

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; nmbilimoria@duanemorris.com.