We are still waiting with bated breath to find out what elder law and estate planning-related provisions will come from Congress’s budget reconciliation process. In the meantime, many of you will be aware of North Carolina’s No Patient Left Alone Act (NC Session Law 2021-171; SB 191), but others may have heard nothing about it. Many likely have also not seen the revised memorandum on nursing home visitation issued by the Centers for Medicare and Medicaid Services (“CMS”) on November 12. Both the Act and the CMS Memorandum are an attempt to restore visitation rights to vulnerable populations receiving health care; the details of both are discussed below.

The North Carolina No Patient Left Alone Act

Effective November 1, North Carolina has adopted the “No Patient Left Alone Act.” The preface to the act recognizes that health care facilities’ Covid protocols have had the unintended consequence of isolating individuals in hospitals, nursing homes, and other health care facilities, sometimes preventing them from having any visitors at all. The act’s intent is to protect the right to visitation throughout hospitalization or residential treatment, consistent with guidelines issued by CMS and the CDC. (Recent CMS guidance on nursing home visitation is discussed below.)

The various sections of the act require hospitals (N.C. Gen. Stat. §131E-79.3), nursing homes (N.C. Gen. Stat. §131E-112.5), hospice (N.C. Gen. Stat. §131E-207.5), adult care home residents and special care unit residents (N.C. Gen. Stat. §131D-7.5), and residential treatment facilities (N.C. Gen. Stat. §122C-32) to “permit patients to receive visitors to the fullest extent permitted under any applicable rules, regulations, or guidelines adopted by either the Centers for Medicare and Medicaid Services (“CMS”) or the Centers for Disease Control and Prevention or any federal law.” The act provides for a 24-hour warning period and then a $500 per instance per day civil penalty for violations of visitation rights (subsection (b) of each section). If a facility must be completely closed to visitors for safety reasons, the facility must take “best efforts to develop alternate visitation protocols that would allow visitation to the greatest extent safely possible” or be subject to the same penalties (subsection (c) of each section). In subsection (e) of each section, the act specifically requires “compassionate care visits,” including in the following situations:

(1) End-of-life situations.

(2) A patient who was living with his or her family before recently being admitted to the facility is struggling with the change in environment and lack of physical family support.

(3) A patient who is grieving after a friend or family member recently passed away.

(4) A patient who needs cueing and encouragement with eating or drinking, previously provided by family or caregivers, is experiencing weight loss or dehydration.

(5) A patient, who used to talk and interact with others, is experiencing emotional distress, seldom speaking, or crying more frequently when the patient had rarely cried in the past.

The act effectively creates a state enforcement mechanism for federal visitation rights, which got a significant boost from recent revised guidelines from CMS in the nursing home context.

Subsequent Federal Visitation Guidance for Nursing Homes

Following the passage of the North Carolina Act, the CMS guidelines for nursing home visitation were revised in a memorandum issued on November 12, 2021, to restore visitation rights that have been curtained by the Covid response. Federal regulations provide that a nursing home resident “has a right to receive visitors of his or her choosing at the time of his or her choosing, subject to the resident’s right to deny visitation when applicable, and in a manner that does not impose on the rights of another resident.” 42 CFR §483.10(f)(4). CMS had allowed broad exceptions to this regulation as a result of Covid; the recent guidance indicates an intent to restore normal visitation but still allow nursing homes to take protective measures to protect residents.

Specifically, with regard to indoor visitation, CMS states that “[f]acilities must allow indoor visitation at all times and for all residents as permitted under the regulations. While previously acceptable during the [Public Health Emergency], facilities can no longer limit the frequency and length of visits for residents, the number of visitors, or require advance scheduling of visits.” (CMS Memorandum Page 4.) Facilities can require visitors to wear face masks and physically distance under appropriate circumstances (id. at 4); in addition, “facilities may ask about a visitors’ vaccination status, however, visitors are not required to be tested or vaccinated (or show proof of such) as a condition of visitation. If the visitor declines to disclose their vaccination status, the visitor should wear a face covering or mask at all times.” (Id. at 5-6) (emphasis in original).

The memorandum also says that “[c]ompassionate care visits are allowed at all times.” Id. at 6. If a nursing home fails to facilitate visitation, it would be potentially in violation of the regulation and subject to enforcement action. Id.

During the pandemic, nursing home residents, in particular, have had their access to friends, family, and even caregivers like senior care managers severely limited. For many nursing home residents, this isolation has predictably resulted in depression, anxiety, and general cognitive decline. Many have seen physical decline as a result of neglect by overworked nursing home staff who have not had these visitors available to help spot care issues. The federal regulations require facilities to “care for each resident in a manner and in an environment that promotes maintenance or enhancement of his or her quality of life …” 42 CFR §483.10(a)(1). We hope that CMS’s restoration of normal visitation and the accompanying North Carolina Act will also help to restore that environment and that promotion of residents’ quality of life.

December 2, 2021/by ElderLaw