Unfortunately, nursing home visitation and visits to long-term care communities in NJ, PA, and beyond are once again being limited or restricted due to residents and/or staff contracting the COVID-19 virus. We have seen the devastating consequences of visitation restrictions on long-term care residents.

During the past year, long-term care advocates have called for each community to allow for an “essential caregiver” during a health care emergency.  In June 2021, a bill was introduced in Congress to recognize essential caregivers.

The Essential Caregivers Act (H.R. 3733) is bipartisan legislation that would give nursing home residents the right to have access to two “essential caregivers” to provide care, support, and companionship during any public health emergency. Essential caregivers would be permitted to visit even if visitation were restricted, as it has been during the COVID-19 pandemic. The purpose is to ensure that residents never again suffer from isolation and neglect because they are completely cut off from family or other individuals who provide crucial assistance and support to them. Essential caregivers would be required to follow the same safety and infection prevention protocols as staff. The bill was introduced by Congresswoman Claudia Tenney on 6/4/21.

While this bill is pending in Congress, what can a family member do?  I would encourage you to argue a compassionate care visit is necessary.

Outside visits, assuming they are still permitted by the community, would be encourages.  However, even outside visits may be restricted.

Pursuant to The Centers for Medicare and Medicaid Services (CMS) guidance, long-term care communities cannot restrict Compassionate Care visits. Compassionate care visits are special visits in which a family member or other visitor provides comfort, support, and/or assistance to a resident whose well-being is suffering or at risk, or who is dying. CMS has developed guidance that provides some examples of situations when compassionate care visits should be permitted. These visits are not limited to end of life.  These include:

  • A resident who is at the end of life.
  • A resident, who was living with their family before recently being admitted to a nursing home, is struggling with the change in environment and lack of physical family support.
  • A resident who is grieving after a friend or family member recently passed away.
  • A resident who needs cueing and encouragement with eating or drinking, previously provided by family and/or caregiver(s), is experiencing weight loss or dehydration.
  • A resident, who used to talk and interact with others, is experiencing emotional distress, seldom speaking, or crying more frequently (when the resident had rarely cried in the past).

These are just examples. Compassionate care visits are not limited only to these situations. There are many other circumstances that would also qualify. Facilities are directed to identify the need for such visits using a person-centered approach and by working with residents, families, resident representatives, and the Long-Term Care Ombudsman Program.

Compassionate care visits have heightened protections and should occur through a person-centered approach, meaning support is planned and provided based on the resident’s individual needs.

If the facility tells you that you cannot have compassionate care visits, there are a number of steps you can take.

  • Ask for the reason. CMS guidance states that facilities may not restrict visitation without a reasonable clinical or safety cause. Check any visitation guidance/directives about compassionate care visits that your state has issued.
  • Request a care planning meeting and emphasize your loved one’s need for these visits.
  • Involve your long-term care ombudsman. The Ombudsman program advocates for residents and can help resolve concerns. Not only can your ombudsman help you and your loved one advocate for their rights, but they can help you work with your facility to identify the need for compassionate care.
  • File a complaint with your state survey agency. This agency is responsible for regulating and overseeing nursing homes in your state. One of its duties is to investigate complaints.

The CMS guidance can be found at https://www.cms.gov/files/document/qso-20-39-nh.pdf.

Please contact our elder care law office if you have any questions.