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CMS Recommends States Use “Extreme Caution” in Relaxing Nursing Home Restrictions

May 19, 2020

By: Alec Dobson

The Centers for Medicare & Medicaid Services issued recommendations on May 18 to state and local officials across the country for when nursing homes can relax certain restrictions on visitation, screening, and services related to the COVID-19 pandemic.

The recommendations envision moving in three phases. Nursing homes would “reopen” more slowly than their surrounding communities will under the Trump administration’s Opening Up America Again program. Visitation restrictions would be relaxed in a nursing home after four weeks without a new case in the facility.

State survey activity would increase in each phase.

CMS Administrator Seema Verma told reporters in the evening of May 18 that state and local officials should use “extreme caution” in deciding when to “reopen” nursing homes, The Washington Post reported.

The criteria for the first phase is that most nursing homes are at “their highest level of vigilance,” regardless of transmission within their communities. In Phase 2 there must have been no new COVID-19 cases in the nursing home for 14 days,[1] the nursing home is not experiencing staff shortages and has adequate personal protective equipment (PPE) and access to COVID-19 testing. In Phase 3 there must have been no new cases for 28 days (the period covered by phases 1 and 2).

In phases 1 and 2 visitation is still generally prohibited, except for compassionate care (for example, end-of-life situations), and visitors and residents must be screened. State surveys will be conducted for complaints involving immediate jeopardy, revisits for removal of immediate jeopardy, infection control, initial certification, and state-based priorities. Phase 2 will add surveys for complaints of actual harm. In Phase 3 visitation is relaxed and normal state survey operations are resumed. Visitors and residents are still screened.

The full visitation and service considerations are too numerous to report here but can be found in the CMS announcement. The CMS announcement also lists survey priorities for phases 2 and 3.

Providers should await further guidance from the Wisconsin Department of Health Services.

Some of CMS’ recommended factors for state and local officials to consider are COVID-19 cases in the community and in the nursing home, adequate staffing, access to adequate testing, universal source control (residents and visitors wearing masks), access to PPE and capacity of local hospitals to accept transfers from nursing homes.

States may choose to increase the waiting periods before relaxing restrictions for nursing homes with significant outbreaks of COVID-19, a history of noncompliance with infection control, inadequate staffing, or other situations the state believes may warrant additional oversight.

CMS provided three examples of how states might move from one phase to another:

  • All nursing homes move through each phase at the same time, when all have met the criteria for the next phase;
  • Nursing homes in a county or other region move through phases at the same time; or
  • Individual nursing homes move to the next phase based on its own status for meeting the criteria for that next phase.

In addition, nursing homes should not advance through phases or relax restrictions until all residents and staff have received a baseline COVID-19 test and appropriate actions are taken based on the results, CMS said.

If you have any questions about this article please contact your Davis|Kuelthau, s.c. attorney, the author linked above, or the related practice group chair linked here.

We will continue to monitor the impact of COVID-19 and provide guidance to businesses via our Coronavirus Legal and Business Resource hub.


[1] Only COVID-19 cases that originated in the nursing home are considered new cases – not cases where the nursing home admits a resident from a hospital who is known positive or becomes positive within 14 days.