Listen to Lawrence…Tips to deal with Nursing Homes Restrictions due to COVID

May 26, 2020

Dear clients and friends,

Hello! I hope you all had a wonderful Memorial Day weekend.

I received the following question a few weeks ago about a nursing home resident’s visitation rights. Since I am not a nursing home rights litigator, I wanted to wait on answering to better collect my thoughts on the subject. Here is the question and my good faith but perhaps frustratingly inadequate answer.

Since this last correspondence encourages questions, I would like to ask if residents in nursing homes, as my father is, have any recourse related to visitation which seems to be suspended indefinitely. Visitors have been banned since March 10, 2020 so this is not only cruel at this point but must also be a violation of his civil liberties. I would like to point out that my father has gotten Covid 19 at this nursing home and has recovered there without needing hospitalization. Couldn’t there be a separate visitation policy for these residents who are no longer at risk of acquiring the disease? Do nursing homes have any autonomy when setting policies or must they follow any and all directives from the governor? I would also like to mention that my father is a private-pay resident. I look forward to hearing from you. Thank you!

First and foremost, my heart goes out to you and your father, as well as to the many thousands of others in similar situations. We all hope that the visitation restrictions will be eased or eliminated soon and families can be reunited.

We all understand that a delicate balancing act is going on. Residents in long term care facilities are among the most vulnerable to dying from COVID 19. Visitors, even if they appear healthy, pose a threat to every resident as the disease spreads quickly in these enclosed environments. As a result, New York has a law prohibiting visitors unless “medically necessary,” or the patient is receiving “end of life care.” Similarly, on the federal level, the Centers for Medicare and Medicaid Services (CMS), the organization that regulates nursing homes, issued similar directions, based upon CDC guidelines, restricting visitation except in certain compassionate cases, like end-of-life. In such end-of-life cases, visitors will be equipped with personal protective equipment (PPE) like masks, and the visit will be limited to a specific room only. The state also asks nursing homes to set up virtual online communication so families can tele-visit residents.The facility will have very little autonomy to create their own path here. Basically, if they accept public money from Medicare and/or Medicaid, they have to abide by all their rules.

So,we know where we are……we get it. We know the party line; society faced an emergency and reacted with a hard line visitation rule that lacked compassion for the individual, lacked nuance and lacked the benefit of a case by case approach. But the policy saved lives! Most nursing homes did a great job given the circumstances, especially with diminishing staffs. While I hope we do better in the future, the present strict isolation of nursing home residents presents a heart wrenching reality. It certainly violates personal rights, especially in a private pay case like your father’s where there is no reliance on government financing. After several months, something should now be done to alter the seemingly cruel strategy of isolation from family.

But this email is not a political essay on how to change the system, but rather the best way to work within it. Given the system, what can we can do to advocate for our loved ones? Here is my best advice:

It is critical to stay in touch daily with your loved one, by phone, virtual device or even a “window visit.” The patient has a right to this communication and you should try and maximize that right. This will not only show your family member the emotional support they need but will also show the staff that you are involved and that you are watching. I believe that the patients who get the best care are the ones whose families are most involved. Of course, not every patient has the physical or mental ability to initiate communication. Every effort should then be made to demand that the facility assist with this communication. We all understand that these facilities are short staffed, but be vigilant! Working with the facility to schedule these communications, may be helpful.

Your situation is not unique. Most other families in the facility are going through the same thing. So band together and create a louder voice. Share information by group emails. Demand that the facility communicate with the group weekly or more often by telephone or zoom video. They need to know that you will “bug them” less if they communicate more. Also, working with a group could alleviate any fear, irrational or not, that complaining too much may work against your loved one. It’s one thing for the facility to hear one complaint and not address it, but it is an entirely different thing to ignore the collective voice of a floor. Together you can maximize communication opportunities. Also, the group approach may be helpful for families that can not afford a fancy tablet to see and speak to their loved ones; several families could pitch in to purchase one.

Every facility has an Ombudsman that you can speak to that has the responsibility of advocating for the residents in the facility. If you think that care or communication is lacking, give them a call to get another ally on your side.

If all else fails with your requests for adequate communication, start complaining, or should I say, firmly advocate, up the chain of command. Speak with your loved one’s social worker, then Director of Nursing, then the corporate office, and finally, the Board of Directors. If you still do not get any satisfaction, then complain to the New York Department of Health, your State Assemblyman and Senator or write the Governor. All this may get you no where, but a written record of your advocacy may come in handy later.

Your ability to visit your loved one becomes more compelling and will garner greater attention if you can argue it is “medically essential” or they will probably die soon and should have the right to have a loved one nearby so they do not die alone. If appropriate, make these arguments loudly and in writing!

A nursing home is not a prison. Your loved one is free to leave at anytime, provided safe and adequate care can be provided elsewhere. If cost is an option, Medicaid will provide care in a person’s home or a family member’s home. As I have pointed out in many other emails, there is no penalty right now for transferring assets to obtain Medicaid eligibility for Medicaid home care services (this changes on October 1st when a 2 1/2 year look back begins).

I hope this helps.

Please pass this information to your family and friends and continue to keep your questions coming! If you are thinking about it, others are probably thinking about it too, so my answers will no doubt help you and many others. Let’s stay connected.