Is Your NH Visitation Policy in Compliance with Federal Law?

“What are your daily visiting hours?” was one of the many questions I asked the intake person in a New York (NY) nursing home (NH) office last year before my late wife was admitted. I was told that I could visit each day between 10:30 a.m. and 8:30 p.m. I was also given several booklets explaining patient rights, administrative policies, and various NH routines, but nothing in any booklet discussed visiting hours. Those same visiting hours, 10:30 a.m-8:30 p.m., were also posted by the entrance desk where visitors had to sign in and out. Twice I came at around 10:15 a.m. and each time I was asked to wait in the lobby until 10:30 because I was “too early.”

Imagine my surprise when I recently learned that I should have been told that I could visit my wife anytime, day or night, as long as she wanted me to be there. Every NH in the United States that accepts Medicare/Medicaid funding, I now know, must allow immediate family members 24/7 access to visit residents.

Section 483.10 (j) (1), subsection vii of the Federal Nursing Home Reform Act of 1987 guarantees visitation rights at any time for immediate family members of NH residents. Whereas the law does state that non-immediate family visits may be subject to “reasonable” restrictions, "immediate family or other relatives are not subject to visiting hour limitations or other restrictions not imposed by the resident."

In 2009, The Center for Medicare and Medicaid services (CMS) attempted to clarify the meaning of subsection vii of Section 483.10 (j) (1) in “Guidance to Surveyors of Long Term Care Facilities.” CMS provided “Interpretive Guidelines,” emphasizing that “Immediate family or other relatives are not subject to visiting hour limitations or other restrictions not imposed by the resident." CMS further provided one question that NHs must be able to answer in the affirmative to be in compliance with federal law: “Do residents and family members know that they are able to visit 24-hours a day?"

CMS also provided revised guidelines that became effective in November 2016 that broadened NH visitation policies. They said, in addition to the provision allowing unrestricted access by immediate family members, NH residents now also have the right to “have visitors at any time, as long as you want to see them, and as long as the visit doesn't interfere with the provision of care and privacy rights of other residents." Similarly, the “Visitors” section of Medicare’s “Skilled nursing facility rights” document now states: “You have the right to spend private time with visitors at any reasonable hour. The SNF must permit your family to visit you at any time, as long as you want to see them.”

New York State NH Regulations
Once I learned about federal law pertaining to 24/7 access to residents by immediate family members, I went online to access the New York State Department of Health regulations for NHs. Surely, I thought, NY had sought a waiver from federal law as it pertains to family visits in NHs; otherwise, why would I have been told to restrict my visits (at one of the best NHs in our state) to between the hours of 10:30 a.m. to 8:30 p.m.

What I discovered was alarming. NY Health Department regulations mirror the federal visitation guidelines in all but one respect: there is absolutely no mention that NHs must provide immediate unrestricted access for immediate family members. The NY visitation regulation states that residents may have visitors, with their consent, “subject to reasonable restrictions and [their] right to deny or withdraw consent at any time.”

The NY Health Department issues a document, “What to Look For When Visiting a Nursing Home,” to help consumers select a good NH for their loved ones. In the section, “Following is a list of some policies to check,” visitation rights are only mentioned in one phrase: “visiting hours should cover a 10-hour period including 2 meal times,” but there is no mention of checking to ensure that the NH provides unrestricted access by immediate family members.

I then contacted the Commissioner’s office of the NY Health Department to ask one question: Has NY sought a waiver from the federal government regarding NH visitation rights, or is NY simply out of compliance with federal law?

I ended up being referred to and speaking with thirteen different individuals in the NY Health Department before one official was finally able to answer my question. She said, “of course NY is in compliance with federal law.” When I noted that the subsection on unrestricted visitation rights by immediate family members does not appear in the state guidelines, I was again assured that the state was in compliance despite no mention of unrestricted access.

When I then related my personal experience, I was told that I could file a complaint! When I asked if the official thought a clarification should be added to the Health Department guidelines, she said that was unnecessary. Incredulously, to me at least, she said that NHs should make visitation guidelines clear but there is no state regulation requiring them to do so, and there is no state requirement for NHs to have anything about unrestricted visitation rights in writing.

Telephone Survey of 10% of NHs in NY
I then decided to contact NHs directly to find out if the situation at my late wife’s NH was unique or if many other NY NHs were also not informing consumers of their right to unrestricted access for family members. I went online again at the NY Health Department website to find a list of all 624 NHs in New York.

I called every tenth NH on each list, 63 NHs altogether, providing me with a good sample size of 10% of all the NHs in NY. (I actually ended up calling 70 NHs because 7 NHs did not answer, even though all calls were made on Saturday or Sunday afternoons between noon and 4 p.m.). I also made sure that each NH was Medicare/Medicaid certified and therefore subject to the Federal Nursing Home Act regulations allowing unrestricted visitations for immediate family of residents.

I asked one question at each NH, and if not given complete information I asked a second question. My first question was, “Can you please tell me your visiting hours?” If told that the NH didn’t have any set hours, hours were 24/7, I can come anytime, or a similar response, I simply said “terrific” or “that’s excellent,” said thank you, and hung up the phone. If given a set time for visits, eg, from 8 a.m. to 8 p.m., I then waited several seconds to see if they would say something like, “unless you are an immediate family member.” None asked me that question, but a few did hang up and I had to call them back! After that pause, or call back, I asked a second question: “If I place my mother at your NH, can I visit her on the way to work an hour before visiting hours begin (whatever time they gave me, I’d pick an hour earlier; so if they said visiting hours begin at 8, I’d ask if I could visit at 7.) I asked the same about visiting on my way home from work at an hour after the limit time they provided.

Survey Results
Results were very disappointing. Given pre-existing federal law and recent updates, every Medicare/Medicaid eligible NH in every state in 2017 should respond the same way when asked about visiting hours for residents. The policy in every NH should be that there are no set times to visit; all visitors may come anytime, 24/7. Immediate family members should face no restrictions, but all other visitors may be asked to wait temporarily if a provision of care or privacy rights of other residents should apply at that time.

Of the 63 NHs I contacted, only 24 responded correctly to my first question by saying that I can visit anytime. When I asked my second question at the other 39 NHs, responses were of five types: ignorant, encouraging, discouraging, very discouraging, or absolutely out of compliance.

Ignorant responses were variations of “I’m not sure” and when asked to check they would return to the phone and continue to say they weren’t sure. Encouraging responses were like this: “Yes, but the doors are locked before and after those times, so just ring the bell and someone will let you in.”

Discouraging responses were often like this: “You can try to get permission from a social worker or a supervising nurse; if we have that permission on file, then someone will come to open the locked door at those times.” Or, “We try to avoid that, but usually we’ll usually let you in.”

Very discouraging responses were often like this: “Our doors are locked and the person with the keys is at a fixed station and doesn’t walk around that much. So you can ring the bell but it may take a long time before anyone comes to let you in.”

However, 5 responses were completely non-compliant with federal law, all variations of “no” such as ... “I’m sorry, but our doors are locked before _ a.m. and after _ p.m.” Or, “No, you must come between those times.”

Obviously, NHs in NY have not yet gotten the message that since 1987 immediate family have been allowed to visit with their loved ones whenever they want, and now other visitors may also visit at any time, albeit subject to some possible restrictions due to resident privacy and care issues. Posting limited visitation hours is not in accordance with federal law, unless those posted visiting hours say 24/7 or “come visit your loved ones anytime.”

For immediate family members and relatives of loved ones placed in NHs in New York, it is both outrageous and sad that so many NHs are actively violating the law and illegally restricting and/or discouraging visits from caring family members.

So, is your facility in compliance with federal law?
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Dr Vann is a frequent writer in caregiver magazines, medical journals, and in major newspapers. After his wife, Clare, was diagnosed with early onset Alzheimer’s disease, Dr Vann made it a point to increase public awareness of Alzheimer’s and to help fellow caregivers. You can read his other pieces at www.allansvann.blogspot.com. If you would like Dr Vann to respond to questions or comments about this article, please email him directly at acvann@optonline.net. 

Published in Annals of Long-Term Care, May 9, 2017.  Access online only.  Access at: http://www.managedhealthcareconnect.com/blog/your-nh-visitation-policy-compliance-federal-law

Note:  Direct links to all sources quoted in this article appear in my blog at the Annals access site.