HOW DOES THE COVID-19 PANDEMIC IMPACT A NURSING HOME RESIDENT’S RIGHT TO VISITATION IN NEW JERSEY?

The Right of Nursing Home Residents

Residents of nursing homes in New Jersey have specific rights afforded to them by law, including the right to visitation.  Specifically, the New Jersey Administrative Code provides residents with the following rights:

• 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 their 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 has also granted visitation rights to residents through the Nursing Home Residents’ Bill of Rights, which provides 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)

Staff at nursing homes need to balance these rights against the relative risks presented by COVID-19 and within the guidance from governmental agencies.  Specifically, while the pandemic affects us all, the risks are much higher for the elderly and infirm. As such, government regulatory agencies have directed significant restrictions on visitation with nursing home residents.

For instance, as early as March 13, 2020, the Department of Health and Human Services, Center for Medicare and Medicaid Services (“CMS”) issued an update to its Guidance for Infection Control and Prevention of Coronavirus Disease. The memorandum advises that ALL facilities nationwide restrict the visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations. The memorandum further directs facilities to notify potential visitors to defer visitation until further notice. The only exceptions to the visitation restrictions are for health care workers and CMS Surveyors.

In addition, the guidance to nursing homes from the Center for Disease Control and Prevention (CDC) directs that facilities:

• Restrict all visitation except for end of life situations; and,
• Restrict all volunteers and non-essential healthcare personnel (HCP), including non-essential healthcare personnel (e.g., barbers)

While it may appear, at first blush, that an outright ban on in-person physical visitation violates the NJ Resident’s Rights provisions, closer review indicates that it does not.  The rights provisions guarantee “reasonable opportunities” for interaction and direct visitation, which allows room for facilities to address the risk of this novel disease.  Further, a ban on physical visitation does not necessarily imply a ban on “visitation”.  In other words, the facility must provide reasonable access to alternative means for communication with loved ones, such as via phone and/or video conferencing via other means (e.g., ZOOM, Facetime, etc.). In fact, CMS has directly advised facilities to implement ways in which communication can be maintained between residents and loved ones, recommending that facilities consider:

• Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.); and,
• Assigning staff as primary contact to families for inbound calls, and conduct regular outbound calls to keep families up to date.

Guidance from CMS has been ongoing and has also addressed the right of nursing home residents to vote.  The November CMS memo can be found here:  https://www.cms.gov/files/document/qso-21-02-nh.pdf

For more information on your nursing home residents’ rights, please contact the NJ Nursing Home Negligence & Abuse Lawyers at Davis & Brusca, LLC.