Having a parent or other loved one in a nursing home or personal care facility can stir up many difficult emotions. Family members frequently express guilt over placing their loved one in a facility, even when they know that their loved one requires a higher level of care. Families want to know that their loved one is receiving the best possible care, and the best way to know that is by visiting. One of the many disruptions brought on by the COVID-19 coronavirus is that families are being shut out of nursing homes, personal care facilities, and other health care facilities. It is a stressful time when families want to be together. Many are asking, “Can they really prevent us from seeing our family member?”
Nursing homes and other health care facilities have had protocols in place for years regarding the detection of illnesses, hygiene, and preventing the spread of disease. The recent state and federal public health emergency declarations have made those protocols more restrictive on patients and their families. The Centers for Medicare and Medicaid Services (CMS) has issued strict guidelines, and facilities may impose their own policies to ensure the safety of staff and patients.
Under the new guidelines, access to nursing homes and personal care homes by visitors is prohibited, except for health care personnel who meet criteria established by the Centers for Disease Control and Prevention (CDC). There is an exception for end-of-life situations, when on a case-by-case basis a facility may allow family members or hospice workers to enter the facility.
Visitors who are allowed to enter a facility must be screened for signs of illness. Facility staff must instruct visitors on hand hygiene, limiting the touching of surfaces, and the use of personal protective equipment. If a visitor has a fever or other symptoms of COVID-19, the facility must deny admission. Visitors are required to wear facemasks and only visit in a resident’s room or other place designated by the facility.
Meanwhile, the patients in nursing homes or personal care homes are subject to restrictions. Facilities have terminated communal dining and all group activities. CMS advises facilities to screen residents regularly for fever and respiratory symptoms and to remind residents about social distancing. For additional CMS guidelines for nursing homes visit https://www.cms.gov/files/document/3-13-2020-nursing-home-guidance-covid-19.pdf ,
So, residents of nursing homes and personal care homes are separated not only from their families, but also from each other. Some people ask what rights they have when the government imposes such restrictions. The state and federal courts have long recognized a constitutional due process right in preserving family integrity. As one court explained, “the most essential and basic aspect of familial privacy [is] the right of the family to remain together without the coercive interference of the awesome power of the state.”
Challenging the restrictions imposed by the state and federal governments would, however, be an uphill battle. Even though there is a protected right to be together with family, that right must be balanced against the government’s compelling interest in containing and eliminating a public health crisis. It is very unlikely that a court would find the government’s restrictions so far to be a shocking or arbitrary violation of due process rights, especially with the exceptions for end-of-life situations.
It is better to focus on the main benefit of the restrictions on access, which is the enhanced safety of your loved one. When other residents’ families are kept out of the facilities, and the staff and limited visitors are regularly screened for signs of illness, you can rest assured that your loved one’s health is being guarded during this difficult time.
The news is not all bad when it comes to the government’s management of the coronavirus. Federal regulation of nursing homes has been in place for a long time ( https://keystoneelderlaw.com/federal-regulation-nursing-homes/ ), and now government agencies are exercising their discretionary authority in ways that will facilitate care for your loved one. Before the current public health crisis, a person going to a skilled nursing facility to rehab from an illness or injury was required to first be admitted to a hospital for three nights in order to qualify for Medicare coverage in the nursing facility. Recognizing that hospitals are operating under a considerable strain, CMS has waived the qualifying hospital stay so that a person needing care in a skilled nursing facility may go directly to that facility.
The U.S. Department of Health and Human Services is also offering greater flexibility in how health care professionals communicate with patients. The Department announced that it will not strictly enforce HIPPA against health care providers that serve patients through such communication technologies as FaceTime or Skype during the public health emergency. When these technologies are used in good faith for telehealth treatment or diagnostic purposes, the privacy standards of HIPPA will not apply, even if the treatment or diagnosis is unrelated to the COVID-19 coronavirus.
While you are unable to be with your loved one in person, make the best use of phone calls and other technology for communication. Many older patients have benefitted from the use of iPads, because they are portable, secure, user-friendly, and easily customized to an individual’s needs and interests. Facility staff may offer to help you and your loved one to use such devices to see each other and talk. Try to remember that the health care professionals in every facility are putting their own health in jeopardy to care for others. Thank them for their hard work, and know that this emergency won’t last forever.
Patrick Cawley, Attorney