Headshot of Evan Shulman, CMS

Nursing homes should allow visitation for residents “at all times,” while state surveyors received steps on how to address a backlog of complaint and recertification surveys under two separate memos issued Friday by the Centers for Medicare and Medicaid Services.

While urging more liberal visitation policy, the agency explained that it is also advising surveyors to take a more critical look at things such as nursing staff competency, use of antipsychotics and potential abuse and neglect issues.

In addition, special attention should be given to facilities exhibiting higher infection rates but lower COVID-19 vaccination rates, CMS said. States that don’t promptly adhere to the new, tougher survey guidelines will risk losing up to 5% of their CARES act pandemic relief funding, the agency warned.

The updated CMS memo on visitation also states that long-term care facilities are not allowed to restrict access to surveyors based on vaccination status, nor ask a surveyor for proof of their vaccination status as a condition of entry into the facility.

While the upgraded survey steps may take most providers by surprise, the updated visitation guidance was somewhat expected.

“Early in the pandemic, visitation restrictions were implemented to mitigate the risk of visitors introducing COVID-19 to the nursing home,” the agency said in a statement. “Today’s guidance update reflects that, while visitors, residents, or their representatives should be made aware of the risks associated with visiting loved ones, visitation should now be allowed for all residents at all times. CMS has consistently updated its visitation guidance through the COVID-19 PHE, and this update represents our most comprehensive action to bring residents and loved ones closer together.” 

This new messaging from CMS stands in stark contrast to a year ago, when the agency specifically advised not allowing visits during the Thanksgiving holiday weekend. At the time, vaccines were not yet available and COVID-19 deaths and cases had yet to hit their highest spike.

Getting back to routine surveys

CMS emphasized that its second memo was to help state surveyors continue “strong concerted efforts” to resume regular recertification surveys. They had been suspended temporarily after the pandemic was declared in order to focus on infection control-related surveys, creating a huge backlog. Routine inspections were later resumed in August 2020.

CMS said it has issued the following to help state surveyors:

  • Revised criteria for conducting COVID-19 Focused Infection Control (FIC) Surveys;
  • Guidance for resuming recertification surveys; and
  • Temporary guidance and minor flexibilities related to complaint investigations.

“CMS is increasing oversight in nursing homes to provide a more focused review of quality-of-life and quality-of-care concerns,” the agency added in a statement. “For example, the memorandum instructs surveyors to specifically review and focus additional attention to the competency of nursing staff, the use of any potentially inappropriate antipsychotic medications, and other areas of care, such as unplanned weight loss, loss of function/mobility, depression, abuse/neglect, or pressure ulcers.”

CMS also is rescinding the requirement to conduct FIC surveys within three to five days of a COVID-19 outbreak. State agencies may still conduct these surveys when concerns related to managing COVID-19, or infection control practices, arise.

State agencies will also resume conducting recertification surveys, but do not need to conduct additional recertification surveys to make up for any surveys that could not be completed during the COVID-19 PHE.

Each state survey agency must continue to perform annual focused infection surveys of 20% of nursing homes. CMS said states should prioritize these surveys for facilities that are reporting new cases and have low vaccination rates. To count toward the required 20%, the surveys must be stand-alone surveys not associated with a recertification survey; the FIC survey may be combined with a complaint survey. States may also conduct these surveys when concerns related to COVID-19 infection control arise

States that fail to perform these survey activities “timely and completely” could forfeit up to 5% of their Coronavirus Aid, Relief, and Economic Security (CARES) Act allocation, annually, CMS said.

Changes foreshadowed

In mid-October of this year, Evan Shulman, director of the CMS Division of Nursing Homes, warned nursing homes to do more to “maximize visitation.”

He said his agency was looking for ways to “help” providers expand visitor access. He also reminded providers that existing guidance issued on visitor restrictions wasn’t necessarily meant to be used at all times or in all places.

Instead, the last memo on visitation policies for non-outbreak situations set out “suggestions” —  including rigid scheduling blocks — that providers could use to structure visits in ways that should help prevent the spread of COVID-19, Shulman said.

Providers should “try to get a little more nuanced about it,” he said at the time. “We don’t need to automatically restrict visitation.”

While families across the country clamored for more access to their loved ones during the summer and fall resurgence of COVID cases, some providers have said they fear allowing visitors (especially unvaccinated ones) could undermine their infection control efforts and spread the virus. 

Emphasis on residents’ rights, visitors

Shulman said CMS was reviewing guidance for changes that could encourage broader visitation, adding that providers who are overly restrictive and still keep visitors out under a blanket policy could be considered non-compliant. Excessive isolation has been identified as a detrimental trait amplified under pandemic conditions.

“We acknowledge that there are still concerns associated with visitation, such as visitation with an unvaccinated resident while the nursing home’s county COVID-19 level of community transmission is substantial or high,” CMS said Friday. “However, adherence to the core principles of COVID-19 infection prevention mitigates these concerns. … The resident has the right to make choices about aspects of his or her life in the facility that are significant to the resident…. If a visitor, resident, or their representative is aware of the risks associated with visitation, and the visit occurs in a manner that does not place other residents at risk (e.g., in the resident’s room), the resident must be allowed to receive visitors as he/she chooses.”

The updated guidance does allow providers to restrict visitors who have a positive viral test for COVID-19, symptoms of COVID-19 or currently meet the criteria for quarantine. Facilities should screen all who enter for these visitation exclusions.

This is a developing story. Please check back for more details.