By Richard Danford
Last week, CMS released the long-awaited recommendations for opening up visitation for Nursing Home Residents. (QSO-20-39-NH REVISED). For months, residents and their loved ones have been suffering terribly, waiting and crying out for relief they desperately need and deserve, not tomorrow, but today. The content of the recommendations definitely offers potential for improvement over the total lock-downs and separations being experienced for over a year now. Sadly, however, the new recommendations offer no actual guarantee that relief is coming any day soon for all nursing homes. Meanwhile, as restrictions and separations continue in varying degrees, from facility to facility, Local Ombudsmen, residents and family members are left to grapple with whatever practices are being followed, or not followed, without any real regulatory guidance.
Despite the well-intended revised recommendations, there are two fundamental problems. First, they are just that, recommendations. Whether or not to actually implement the guidelines, or even a portion of the guidelines, is at this point essentially left up to the nursing homes themselves. The language is repetitive throughout the recommendations that providers “should” follow the guidelines, not that they must.
The second problem has to do with enforceability. The recommendations attempt to address that question by attaching language from the Federal regulations themselves, which state: “Failure to facilitate visitation, without adequate reason related to clinical necessity or resident safety, would constitute a potential violation of 42 CFR § 483.10(f) (4), and the facility would be subject to citation and enforcement actions." (Emphasis added) The initial problem here is that non-compliance with this law constitutes only a “potential” violation. A bigger problem yet rests with who is responsible for enforcement and what standards they may apply.
Oversight and regulatory enforcement of Nursing Home standards rests with each individual state, not the Federal government. Each state has their own set of regulations whereby facilities are supposedly held accountable. Some state regulations mirror Federal regulations and some do not. For purposes of this discussion, it is safe to say that most facilities will wait until their individual state decides how to proceed and notifies them accordingly. This may even require action by state legislatures. That can and often does take months. Meanwhile, what policies and practices are being followed is going to be “all over the map,” from one facility to the next. Even when states set their standards, there is the question as to how well those standards will be enforced. Failure on the part of the states to enforce existing regulations has been a core problem across the industry and well documented for years.
So, for consumers and family members familiar with Nursing Home care it is totally understandable that they may be feeling a strong sense of Déjà vu. For decades now recommendations from various “official” sources have been issued regarding issues like staffing levels, use of psychotropic medications, transfer and discharge standards, admission of persons with mental disabilities, infection control standards, etc. There has repeatedly been a confirmation that consumer concerns are valid and appropriate, followed by a lack of anything really happening to bring about meaningful change. One has to wonder if we’re seeing the same thing now, and expecting different results. Let’s hope not.
No doubt there are some nursing homes that are attempting in good faith to open up for visitation, including many that will likely attempt voluntarily to implement the new recommendations. So far, however, the experience of local Ombudsman programs has found that even those facilities often revert back to full lockdown practices and no visitation out of fear and uncertainty, even when such measures are unnecessary and inappropriate.
Thankfully, the vaccinations now being administered are marking an end to the devastating losses of life. So, let us hope that the new CMS recommendations about visitations in nursing homes is the beginning of the end for resident & family separations. Until that happens, however, it is very clear why residents and family members may be having a sense of Déjà vu. It goes without saying that they deserve far more.