Trump Administration Issues Guidance Prolonging Extreme Isolation of Nursing Home Residents

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On May 18, 2020, the federal Centers for Medicare and Medicaid Services (CMS) announced new guidance seeking to perpetuate the extreme isolation of nursing home residents throughout the nation, perhaps for months or years to come. Declaring that “we are not at a point where nursing homes can safely open up,” CMS established reopening criteria that few nursing homes will ever meet, such as “no staffing shortages.”

The guidance describes a three-phase process in which current visitation restrictions would not be eased until phase 3 after a nursing home has had no new COVID cases for 28 days and is not experiencing staff shortages.[1] Short staffing is a primary reason to restore visitation, not to prohibit it. Unscrupulous operators who do not want visitors or watchdogs in their facilities will have every perverse incentive and opportunity to keep them out indefinitely by allowing neglect to continue.

In essence, the Trump Administration is punishing nursing home residents for its own failures. Nursing home residents were not safe before the pandemic due to its lax enforcement of crucial staffing and infection control standards and its coddling of profiteering nursing home operators. Nearly three months after the coronavirus began killing dozens of residents at the Life Care Center of Kirkland, it still has not identified the nursing homes with outbreaks much less taken meaningful steps to prevent them. How can it be that so many nursing homes throughout the nation still lack the access to testing and personal protective equipment (PPE) needed to help keep residents safe?

There’s a powerful reason that one of very first rights established by the landmark Nursing Home Reform Act of 1987 gives residents the right to be free from involuntary seclusion. For frail, fragile people living in nursing homes, seclusion is its own type of death sentence. Locking out their loved ones in the name of keeping residents safe from the coronavirus is extraordinarily cruel and unnecessary.

Nursing homes are unquestionably unsafe for everyone who lives and works in them now, but completely banning visitors makes them more so. The isolation has brought an immense emotional toll on residents and all who care about them. In addition to losing the love and companionship of their friends and family, many residents are deprived of life sustaining care, support, advocacy, encouragement, and help with communications their loved ones had been providing on a daily basis.

If there is a silver lining in the new guidance, it’s that it is merely a recommendation to states that they should be free to ignore. California has already issued guidance allowing designated support persons for nursing home residents that requires visitors to follow the same type of safety precautions that apply to staff. Additionally, California has its own laws and policy protecting resident visitation to consider.[2] Instead of condemning many nursing home residents to never see their loved ones again through adherence to the CMS guidance, California should expand and clarify its visitation policy on support person visitors to maximize the welfare of residents.

Tens of thousands of nursing home residents are suffering and dying alone. That must stop now.

Read CANHR’s Alert, It Is Time to Ease the Visitation Ban in Long Term Care Facilities.

[1] The guidance also recommends suspending routine nursing home surveys until after a nursing home has had no new COVID cases for 28 days and is not experiencing staff shortages, which will encourage facilities to delay testing and address staffing shortages.
[2] Health and Safety Code § 1418.3; 22 Cal. Code Regs. §§ 72527(a)(17) and (19)