• Troyer & Good, PC

FAQs for Guardians During COVID-19 Part 1: Access in Nursing Homes or Hospitals

Updated: Jul 20, 2020

During the COVID-19 pandemic, many who are acting as guardians have important questions as to how the pandemic impacts their responsibilities. An FAQ list has been put together to address these questions. While the list is not all inclusive, it contains answers to some of the commonly asked questions from guardians during this pandemic.

This FAQ list, copied verbatim below, comes from a collaboration between the National Guardianship Association, the American Bar Association Commission on Law and Aging, and the National Center for State Courts.

This is the first part in a series taken from the FAQ list provided. Part 1 addresses frequently asked questions under these topics: "Contact with My Clients or Loved One," "Access to My Clients or Loved One in Nursing Homes," and "Access to My Clients or Loved One in Residential Group Settings and Hospitals."

You can read part 2 discussing frequently asked questions under these topics: "Protections and Services for My Clients or Loved One in the Community" and "Access to Courts."

You can read part 3 discussing frequently asked questions under these topics: "Protecting the Rights and Well-Being of My Clients or Loved One" and "Protecting the Medical Decisions for My Clients or Loved One."

You can read part 4 discussing frequently asked questions under these topics: "Protecting the Finances of My Clients or Loved One" and "Safety Precautions."

Contact with My Clients or Loved One

Do I have a legal or professional duty to continue in-person visitation with my client? If not, what are my responsibilities regarding maintaining contact?

You have an ongoing duty to maintain contact with your clients, even if face-to-face visits are restricted. Nothing about the current pandemic decreases your responsibilities to oversee the well-being of those you are appointed to serve. The current conditions just make your job harder.

The National Center for State Courts is recommending that, in addition to regular annual reports, all guardians conduct an immediate well-being assessment of each client's circumstances including the following:

  • Current living arrangement

  • Stability of living arrangement

  • Health risks due to COVID-19 in current living arrangement, including to any caregivers

  • Plans for backup guardian

  • Current contact information for you, your client or loved one, including the backup or standby guardian

  • Continuing availability of necessary in-home services when applicable

  • Appropriateness of current services or need for services

  • Education continuity and enrichment for children with guardianships who are currently out of school.

Access to My Clients or Loved One in Nursing Homes

What federal guidance on visiting nursing home residents apply to guardians?

The Centers for Medicare & Medicaid Services (CMS) released Guidance for Infection Control and Prevention of Coronavirus Disease 2019 in Nursing Homes ("Federal Guidance"). According to the Federal Guidance, facilities should restrict "all visitors and non-essential health care personnel" with very limited exceptions as described below. While not mentioned specifically, the limitation applies to guardians and family members. If a state has stricter requirements for nursing homes beyond the federal guidance, such as allowing no exceptions, guardians must follow the state law. Some states are beginning to loosen restrictions on visitation, so check with local authorities for new policies.

Can I ask for a court order exempting me from the federal restrictions on visiting a nursing home resident?

Because nursing homes are regulated by federal as well as state law, the court may not have authority to order access in contradiction to the Federal Guidance. Nursing homes may jeopardize their federal certification if they do so.

Are there any exceptions to the federal guidance on visiting residents in nursing homes?

Under the Federal Guidance, access to a nursing home is allowed only for essential health care workers and government surveyors. "Essential" is interpreted very narrowly, given the risk to residents, and does not include guardians.

However, visits are allowed for "compassionate situations," which include but are not limited to end-of-life care. Facility decisions about these visits are to be made on a case-by-case basis, with careful screening for COVID-19 symptoms.

What are the recommended safety precautions for entering a nursing home in a "compassionate care" situation?

Facilities should require you to wash your hands frequently, use Personal Protective Equipment (PPE) such as face masks, and restrict your visit to the resident's room or other designated location.

What are the nursing home's duties to facilitate communication with residents?

The Federal Guidance encourages nursing homes to facilitate contact with residents through alternative means of communication. Nursing homes "need to facilitate resident communication" with the ombudsman and other patient representatives who have a role in safeguarding resident rights, including guardians, conservators, agents with a power of attorney, and representative payees. If a nursing home is slow to assist you, refer staff to the Federal Guidance.

In lieu of in-person visits, what are my legal responsibilities regarding maintaining contact with clients or loved one?

If you cannot visit your client or loved one in person, you still have a duty to maintain contact and be as up to date as possible on his or her condition, needs, and concerns. Check with your court to see if it has issued any guidance for guardians on alternative means of maintaining contact.

  • Remote Access Technology. Try all possible modes of remote communication: phone calls, texts, video chats or email. Does the resident have access to a landline, cell phone, computer or tablet? Adjust the number and length of contacts when necessary. For example, 3-4 short phone calls may take the place of one longer in person visit.

  • Facility Staff and Records. Talk with facility staff including nurses, aides, social workers, activity directors, or anyone with direct access to the person. Be sure to participate by phone or video in care planning meetings. Inquire frequently about COVID-19 screenings and symptoms. If facility records are available electronically, ask to review them periodically.

  • "Through the window." Plan with staff to arrange a meeting with the person though a window, door or other reasonable barrier. Your physical presence may provide some measure of comfort, and you will be able to see the individual in person.

What are the confidentiality concerns in communicating via technology?

Having nursing home staff help in your contact with a client or loved one may be necessary but can compromise confidentiality. Ask for some private time to talk with your client or loved one alone - which may or may not be possible, given hearing or vision loss, physical impairments and dementia, unfamiliarity with technology, and uneven Internet connections. It is a challenge, but making the effort to protect your

client's or loved one's privacy during your communications is important.

The National Consumer Voice for Quality Long Term Care (Consumer Voice) has more ideas on maintaining contact from a distance at COVID-19 and Nursing Homes, What Residents and Families Need to Know.

My client or loved one has dementia, is non-verbal, or is non-English speaking. How can I use technology to communicate and monitor well-being?

Any audio or visual device can help you to gauge the person's condition and well-being. Your presence, even by phone or video, may be comforting and centering for the person. But for communication about the person's needs and wishes, consider these basic suggestions:

  • For residents with dementia, speak slowly and clearly, use plain language; cover only one topic at a time; ask yes or no questions. Take time to listen. If the person can speak, confirm your understanding of what was said by paraphrasing. See communication tips from the Alzheimer's Association.

  • For non-verbal individuals, video can allow them to use gestures or signs to express needs. Some software allows the user to point to pictures to indicate emotions and needs.

  • For non-English speaking residents, facility staff may be able to translate or use a language line interpretation service by phone or video.

Can my client or loved one still contact the long-term care ombudsman?

Yes, the long-term care ombudsman program continues to operate in every state, even though ombudsman staff cannot make in-person visits (except in the limited situations described above). Be sure you and your client or loved one have the state or local ombudsman's contact information. You can find the contact information for each state’s long-term care ombudsman’s office on the Consumer Voice for Quality Long-Term Care website.

How can I find out whether the nursing home has confirmed or suspected cases of COVID-19?

CMS has issued an interim final rule (May 1, 2020) requiring nursing homes to inform residents, their representatives (including guardians), and families by 5:00 PM the next calendar day following the occurrence of a confirmed COVID-10 infection or if three or more residents or staff exhibit new symptoms within 72 hours of each other. This communication must not include personally identifying information. It must include actions the facility is taking to prevent or reduce the risk of transmission and be updated at least weekly. The facility need not make individual contacts to you as guardian -- it may use general means of communication such as websites and recorded phone messages. Check out pages 180-181 in the interim final rule for the details.

In addition to the federal requirements, some states have policies requiring nursing homes to report COVID-19 outbreak information. Consumer Voice for Quality Long-Term Care has an interactive map showing state policies on reporting, testing, and immunity.

Do I have to notify the court in order to move my client or loved one from a nursing home to another location?

Some state laws require advance notice to the court if your client or loved one moves to a new residence. Contact the court to see if your state or your court has issued any guidance about COVID-related changes in required notices, including timelines, when a client or loved one moves. In any case, you must inform the court of any change of address for you and your client or loved one.

When considering whether to move your client or loved one, keep in mind the guidance in NGA Standard of Practice 12.1.A.5: the goal of such a decision should be to minimize the risk of substantial harm to the person, to obtain the most appropriate placement possible, and to secure the best treatment for the person.

Can a nursing home move my client or loved one to a different room or a different part of the facility?

If the nursing home moves your client or loved one for the sole purpose of separating COVID-positive from COVID-negative residents, CMS guidance waives the resident's rights to:

  • Share a room with the consent of both parties

  • Receive advance notice of the transfer

  • Refuse the transfer.

Can a nursing home transfer my client or loved one to a different facility?

Federal nursing home regulations provide specific protections when a facility proposes to transfer a resident to a different facility or discharge the resident. Under the regulations, residents have the right to written notice (usually 30 days in advance), the right to request an appeal, and other protections. Guardians should be aware of those rules. For more information, see Consumer Voice’s resources on nursing home transitions.

However, due to COVID-19, CMS has now waived those requirements in the following situations:

  • Transferring residents with COVID-19 or respiratory infection symptoms to a facility dedicated to the care of individuals who test positive or have symptoms.

  • Transferring residents without diagnosis or symptoms to a facility dedicated to the care of those residents.

  • Transferring residents without symptoms of a respiratory infection to another facility for 14-day observation.

In those three situations, the facility must give you notice "as soon as practicable." However, without advance notice, it may be difficult for you to challenge the transfer even if you have concerns about its impact on your client or loved one. See Consumer Voice's summary of CMS guidance.

Keeping open the lines of communication with the nursing home and with the local long-term care ombudsman can help minimize surprise changes and disruptions to the care of your client or loved one.

My state or local government is lifting restrictions that were imposed due to COVID-19. Can I visit my client or loved one?

Many states and localities are lifting restrictions on commercial and interpersonal activities, usually in stages. Often the first steps include allowing certain businesses and facilities to open, such as outdoor restaurants, barbers and hair salons, parks, and beaches, but these measures vary widely. While there are no federal mandates or regulations regarding reopening, the White House has issued Guidelines for Opening Up America Again.

You will need to ask the facility where your client or loved one lives and/or your state or local officials whether the facility is able to welcome visitors. CMS published Nursing Home Reopening Recommendations for State and Local Officials and FAQS on reopening on May 18. CMS suggested that state and local governments use a phased approach to lifting restrictions in nursing homes. Nursing homes should not relax any restrictions and cautionary measures during Phase I of a community’s reopening and should lag behind changes for other types of entities by at least 14 days. CMS recommended that nursing home visits (beyond compassionate care situations) not begin until Phase 3 of a state or community’s reopening plan. Visits should not start until there have been no new nursing home onset COVID-19 cases for 28 days.

Once visitation is allowed, CMS recommended that visitors be required to take safety measures including wearing masks and undergoing health screening before entering. CMS also made recommendations about testing of staff and residents.

Once the nursing home permits visits, how should I decide whether to see my client or loved one face-to-face?

Guardians should still make individualized decisions about in-person visits to clients and loved ones. You might consider issues such as:

  • How much of an infection risk would your visit pose to your client or loved one? Is he or she particularly at risk for infection due to underlying conditions?

  • Can you visit your client or loved one without posing too much risk to your own health? This may depend on your health status and whether the facility has active cases. If a visit would be too risky for you, can someone else visit or provide services on your behalf?

  • Are there things you can do to make an in-person visit safer? For example, does the facility have an outdoor space where you can spend time with your client or loved one?

In making decisions about visitation, refer to the NGA Standards of Practice, especially Standard 13.IV regarding visitation and Standard 14 regarding medical treatment decisions.

Access to My Clients or Loved One in Residential Group Settings and Hospitals

Unfortunately, COVID-19 appears to spread quickly, with tragic results, in group residential settings for older persons or people with disabilities. Recent media accounts across the country describe challenging conditions, diminishing available staff, and lack of resources as contributing to high rates of infection and death comparable to nursing homes. If visits are not possible, check in with your clients or loved one as frequently as possible via remote access.

Residential group settings include licensed assisted living, retirement communities, group homes, foster care homes, senior independent housing, shared housing, and other similar models.

What are the restrictions on visiting an individual in an adult residential group setting?

Unlike nursing homes,currently there is no COVID-19 related federal regulation of residential housing and care settings such as adult foster homes, assisted living, group homes, or other similar models. Check with your state agency on disability, aging and/or health and human services for state- specific pandemic restrictions.

Unfortunately, COVID-19 appears to spread quickly, with tragic results, in group residential settings for older persons or people with disabilities. Recent media accounts across the country describe challenging conditions, diminishing available staff, and lack of resources as contributing to high rates of infection and death comparable to nursing homes. If visits are not possible, check in with your clients or loved one as frequently as possible via remote access.

Are there restrictions on visiting an individual in a licensed assisted living facility?

Unlike nursing homes, assisted living is regulated at the state level. States use different terms for licensed assisted living, such as residential care or shared housing. To find out about restrictions on visits, as well as other COVID-19 prevention and control requirements, contact the state agency that regulates assisted living. For the agency and contact in your state, see NCAL 2019 Assisted Living Regulatory Review. While there are no federal COVID-19 assisted living requirements, federal CDC assisted living guidance

recommends that assisted living facilities promptly notify the local health department about any outbreaks, develop plans for notifying residents and family members, and limit or restrict outside visitors.

Are there restrictions on visiting an individual in other residential group settings?

Various state agencies may regulate residential group settings and may have requirements for COVID-19 prevention and control. While there is no federal regulation, federal CDC guidance for retirement communities recommends owners and operators of such residential settings encourage personal protective measures, limit visitors, screen workers, inform residents and visitors about outbreaks, and establish a “buddy” system for residents to ensure they stay connected.

How can I find out whether a residential group setting has confirmed or suspected cases of COVID-19?

Start by asking the facility administrator for the information directly. In addition, check with your state public health department. Some states are posting facility-specific lists on the number of residents and staff with COVID-19 infections and the number of fatalities. If your state is not currently posting this information, ask the public health department whether it is available, or contact the long-term care ombudsman program. Consumer Voice for Quality Long-Term Care has an interactive map on state long-term care policies on COVID-19 that includes information on state reporting requirements for assisted living.

How should I decide whether to visit my client or loved one when restrictions on visitations are lifted?

Once states and localities begin lifting restrictions, ask the facility administrator and your local public health department whether you may visit your client or loved one. Then make a determination based on the risk to the individual, as well as to you (see nursing home section above).

What are the restrictions in access to clients or loved one in other health care institutions, including hospitals, psychiatric hospitals, and critical access hospitals?

Federal guidance by CMS says hospitals should set limits on visits to patients. Hospitals should use the same screening protocol for visitors that they use for patients, such as asking about the visitor’s symptoms, travel, and contact with someone with known or suspected COVID-19. Limitations may include restricting the number of visitors per patient, limiting visitors to only those who provide assistance to the patient, or limiting the visitor’s movement within the facility. CMS’s guidance suggests that health care facilities take measures to increase communicating with families via phone or social media. Some states and hospitals have provided exceptions to “no visitor” policies when necessary for people with disabilities.

In lieu of in-person visits, what are other means of fulfilling my duty to maintain contact with a client or loved one?