Generally speaking, a nursing home facility is a resident’s home. Consequently, residents can have guests visit them at the nursing home whenever they want. Residents can choose whomever they want to visit and can decide to have their visitors present while they are receiving medical or nursing care. By federal law, in nursing homes that accept federal Medicare or Medicaid funding, residents have a right to visitors any time they like, regardless of whether the nursing home has posted visitation hours.
New Jersey residents are afforded specific rights in relation to visitations at nursing homes. The New Jersey Administrative Code governing the licensing of nursing homes provides residents the right:
- To have reasonable opportunities for private and intimate physical and social interaction with other people, including arrangements for privacy when the resident’s spouse visits. If the resident and his or her spouse are both residents of the same nursing home, they shall be given the opportunity to share a room, unless this is medically inadvisable, as documented in their records by a physician or advanced practice nurse – N.J.A.C. 8:39-4.1(17)
- To meet with any visitors of the resident’s choice between 8:00 A.M. and 8:00 P.M. daily. If the resident is critically ill, he or she may receive visits at any time from next of kin or a guardian, unless a physician or advanced practice nurse documents that this would be harmful to the resident’s health – N.J.A.C. 8:39-4.1(23)
- To request visits at any time by representatives of the religion of the resident’s choice and, upon the resident’s request, to attend outside religious services at his or her own expense – N.J.A.C. 8:39-4.1(27)
The New Jersey Legislature also grants visitation rights to residents through the Nursing Home Residents’ Bill of Rights, which establishes that residents may not be deprived of any constitutional rights despite their admittance in a nursing home. Specifically the act establishes that every resident of a nursing home shall:
- Have the right to unrestricted communication, including personal visitation with any persons of his choice, at any reasonable hour – N.J. Stat. § 30:13-5(h)
- Have the right to reasonable opportunity for interaction with members of the opposite sex. If married, the resident shall enjoy reasonable privacy in visits by his spouse and, if both are residents of the nursing home, they shall be afforded the opportunity, where feasible, to share a room, unless medically inadvisable – N.J. Stat. § 30:13-5(l)
While the outbreak of Coronavirus Disease 2019 (COVID-19) will affect us all, the elderly and infirmed are at the highest risk for fatality. For that reason, government agencies that regulate nursing homes have been directing significant restrictions on visits to residents of nursing homes.
On March 13, 2020, the Department of Health and Human Services, Center for Medicare and Medicaid Services issued an update to its Guidance for Infection Control and Prevention of Coronavirus Disease 2019 (COVID-19) in Nursing Homes Memorandum to State Survey Agency Directors. The memorandum advises that ALL facilities nationwide restrict visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations, such as an end-of-life situation. In those cases, visitors will be limited to a specific room only.
The memorandum further provides that facilities are expected to notify potential visitors to defer visitation until further notice (through signage, calls, letters, etc.). Additionally, if a state implements actions that exceed CMS requirements, such as a ban on all visitation through a governor’s executive order, a facility would not be out of compliance with CMS’ requirements. In this case, surveyors would still enter the facility, but not cite for noncompliance with visitation requirements. The only exceptions to the restrictions are for health care workers and CMS Surveyors.
The Center for Disease Control and Prevention (CDC) issued guidelines to nursing homes, instructing facilities to:
- Restrict all visitation except for end of life situations.
- Restrict all volunteers and non-essential healthcare personnel (HCP), including non-essential healthcare personnel (e.g., barbers)
In light of the serious recognized threat to the elderly from COVID-19, it is our collective responsibility to limit of its spread. However, if your loved one is residing in a New Jersey nursing home and he or she is at the end of his/her life, you may have legal basis to insist on your visitation rights. On the other hand, given the highly contagious nature of this virus, there is the potential that even end-of-life situations will not be deemed an exception to the limit on all non-medical personnel entering nursing homes. Presumably, if the facility does not have the ability to effectively isolate those in end-of-life situations for visits, these visits may also be prohibited for the safety of all the residents.
The ban on physical visits does not mean that you will have no communication you’re your loved-one. CMS advises facilities to implement ways in which communication can be maintained between residents and loved ones. The memorandum recommends that in lieu of visits, facilities should consider:
- Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.).
- Creating/increasing listserv communication to update families, such as advising to not visit.
- Assigning staff as primary contact to families for inbound calls, and conduct regular outbound calls to keep families up to date.
- Offering a phone line with a voice recording updated at set times (e.g., daily) with the facility’s general operating status, such as when it is safe to resume visits.
Importantly, the restrictions do not affect a resident’s right to access the Ombudsman program. If in-person access is not available due to infection control concerns, facilities need to facilitate resident communication (by phone or other format) with the Ombudsman program or any other entity listed in 42 CFR § 483.10(f)(4)(i). The entire CMS memo can be found here.
The New Jersey Statewide Ombudsman Directory can be found here.
For more information regarding your nursing home residents’ rights, please contact Stark & Stark’s Nursing Home Negligence and Abuse Attorneys.