Getting Past the Nursing Home Lock-Down – Government Letters Help

Elderly citizen at a nursing home - Hammerle Finley Law Firm

If the impact of COVID-19 were to be illustrated by only one picture, it would be that of a grandfather and grandson, separated by a nursing home window, reaching out to touch each other’s hand through the glass.     

Pitiful as that scene is, even that amount of limited communication is not being offered by some nursing homes. 

If you are one of the families being denied visits or information by a locked-down facility, is there anything that you can do?  

Of course there is.

Contact the facility and remind them in a friendly fashion about the guidance they received from the government. Texas Health and Human Services issued a letter for nursing homes (PL 20-11) that instructs: “During this time, the facility should provide alternate means of communication for people who would otherwise visit, such as virtual communications (e.g. video or telephone conferencing systems) to promote ongoing contact between residents and their loved ones…A NF should do the following:…Offer alternate means of communication during this time of limited visitation, such as: a. Phone calls, video calls, or other means of electronic communication b. Offering a phone line with voice recording updated at set times (e.g., daily) with the facility’s general operating status, such as when it is safe to resume visits”.

HHS issued a similar letter (PL 20-23) for assisted living facilities.

CMS issued this: “In lieu of visits, facilities should consider: a) Offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.). b) Creating/increasing listserv communication to update families, such as advising to not visit. c) Assigning staff as primary contact to families for inbound calls, and conduct regular outbound calls to keep families up to date. d) Offering a phone line with a voice recording updated at set times (e.g., daily) with the facility’s general operating status, such as when it is safe to resume visits.”

AHCA recommended the following: “Set up a process to allow remote communication for residents and others. Ensure emergency contact information for family members and the resident representative is up to date.  Develop alternative means of communications for residents to visit and talk with loved ones, such as video chat, telephone, texting or social media.  Inform residents or their representatives of these changes using clear, concise, jargon-free messages that express empathy for their situation while still explaining the [no-visitors] policy.  Ensure proactive communication with residents, loved ones, contractors, volunteers, etc to make them aware of these restrictions and to keep them up to date.  Develop a process for family members to communicate with the facility with questions.”

The facilities cannot hide behind HIPAA laws to withhold information. HHS-OCR has issued several notifications that it will not impose penalties for certain HIPAA violations against health care providers for “good faith” uses and disclosures of PHI when necessary to facilitate quick transmission of “COVID-related health data.

If the facility is still recalcitrant, call the Texas State Long-Term Care Ombudsman. That should light a fire under the facility.

Virginia Hammerle practices estate planning, elder law and civil litigation.  You can reach her at legaltalk@hammerle.com.