CMS: Federal Nursing Home Visitation Guidelines Generally Trump State Rules, But Integration Ongoing

September 22, 2020, Alex Spanko, Skilled Nursing News - The federal government’s sweeping new rules requiring nursing home visitations in most cases generally usurp state-developed requirements, a top official confirmed this week, but Washington is continuing to work with state governments to iron out any significant areas of conflict.

“Generally speaking, state guidelines cannot conflict with federal requirements,” Evan Shulman, director of the Centers for Medicare & Medicaid Services (CMS) division of nursing homes, said during a call with industry stakeholders Monday.  “That’s just a general rule applying to all requirements.”

CMS’s new rules, unveiled last Thursday, compel nursing homes to facilitate indoor and/or outdoor visits as long as each facility meets certain safety criteria — generally based on the level of COVID-19 positives in the surrounding community, and the lack of active outbreaks within the building.  Operators will face citations and fines for non-compliance with the regulations, with CMS in particular citing the psychosocial toll that the visitation bans have taken on both vulnerable nursing home residents and their families. 

“CMS understands that nursing home residents derive value from the physical, emotional, and spiritual support they receive through visitation from family and friends,” CMS official David Wright wrote in a memo laying out the rules.  “In light of this, CMS is revising the guidance regarding visitation in nursing homes during the COVID-19 PHE [public health emergency].”

The federal government has made clear that the updated requirements replace and supersede all previous rules surrounding nursing home visitation, which was suspended on March 14 in an early attempt to curb the spread of the novel coronavirus.

But since that date, individual states have implemented a variety of rules to facilitate visits — a reality created by CMS itself.  The agency left the task of developing reopening plans to the states when it unveiled its first wide framework in May, generally based on the principle that the COVID-19 situation varied significantly across regions.

The patchwork quilt of rules had already created headaches for operators with multi-state footprints, but now even single-site facilities are grappling with the question of whom to obey: CMS or the governor?

In response to a question from a stakeholder in Colorado, whose Gov. Jared Polis has issued his own rules for indoor nursing home visits, Shulman on Monday vowed that CMS is working with states to ensure a “seamless transition” of regulations.

“We will be working with states on how their guidelines may need to fit inside of our guidelines,” Shulman said.  “Stay tuned for that.”

The federal rules do take into account local factors such as active outbreaks and community spread; facilities in counties with a positivity rate above 10% cannot allow indoor visits, while individual buildings must have 14 days without a positive case to open their doors.

But CMS did not mince words when describing the stakes.

“For example, if a facility has had no COVID-19 cases in the last 14 days and its county positivity rate is low or medium, a nursing home must facilitate in-person visitation consistent with the regulations, which can be done by applying the guidance stated above,” CMS warned.