New CMS Regulations

Dear Friends and Clients:

It is abundantly clear that nursing home residents represent the most at risk individuals for developing serious and deadly complications from 2019 Novel Coronavirus (COVID-19 or the Coronavirus). In response to this truth, the Federal Government through the Centers for Medicare & Medicaid Services (CMS) announced a series of new regulations designed to keep America’s nursing home residents safe from the Coronavirus. The following are links to those guidelines:

March 13, 2020 CMS Memorandum

March 23, 2020 CMS Memorandum

We understand that you may have questions or concerns regarding the meaning and impact of these developments on your loved ones.

Summary of the CMS COVID-19 Updated Guidance

Relying on the most recent recommendations from the Centers for Disease Control and Prevention (CDC), CMS announced a new targeted plan for health care facility inspections to prevent the spread of COVID-19 at nursing home facilities. CMS plans to revisit the success of the protocols/guidelines identified in their pronouncements every three weeks.

CMS and State inspectors intend to use this new process to assess whether certain facilities are prepared to meet the CMS expectations for preventing the spread of COVID-19. When deficiencies are identified, facilities will be required to take corrective actions to cure these identified deficiencies. As the targeted infection control inspections are prioritized, standard inspections, aside from those in the “immediate jeopardy” category will be suspended.

These most recent CMS guidelines discuss limitations of visitation. As a general rule, visitation is restricted and only essential health care personnel will be permitted access, except for certain compassionate care situations, such as an end-of-life situations. In those cases, visitors will be limited to a specific room only and there will be protocols in-place to ensure the safety of all residents and personnel in the facility.

Significance to You and Your Loved Ones

While it is important to acknowledge that CMS is taking measures to address the current risks to nursing home residents, we must also understand the potential consequences of these measures on the residents. Most notably, the risk of pressure ulcer development and progression, falls and the failure to treat and assess the more common infections in nursing homes, such as urinary tract infections, colostrum difficile (c-diff) and pneumonia.

Like most states, New York and New Jersey place a premium on the safety and rights of nursing home residents. In the mid-1970’s both New York and New Jersey enacted statutes intended to protect the most vulnerable members of our society, nursing home residents. New York enacted Public Health (“NY PHL”) § 2801-d which provides a private cause of action to residents of nursing homes where they have been deprived of a right or benefit as defined by law. New York also enacted NY PHL § 2803-c which sets forth a Statement of Rights of Patients in Certain Medical Facilities (nursing homes and facilities providing health related services). Lastly, New York promulgated 10 NYCRR § 415.1 et. seq., a series of Codes, Rules and Regulations regulating the operation of such facilities. New Jersey enacted the Nursing Home Responsibilities and Residents’ Rights Act (NHA), N.J.S.A. §30:13-1 to -17, which created “a bill of rights” for nursing home residents. One such right, N.J.S.A. §30:13-5(j), provides that every resident in a nursing home shall Have the right to a “safe and decent living environment.” This right includes “the right to expect and receive appropriate assessment, management and treatment[.]”

Facing immense adversity during these trying times, health care professionals understandably will focus their attention to COVID-19 infection prevention. However, it is important to remember that your loved ones are still entitled to the protections afforded to them in the aforementioned laws, codes, rules and regulations. With care takers prioritizing COVID-19 and families unable to physically monitor their loved ones, the protection of the resident rights is of paramount importance. A facility must still continue to appropriately assess, manage, and treat all of its residents. Failure to do so, could result in an uptick in pressure ulcers and related infections, falls and other avoidable injuries to the residents.

What You Can Do?

Now more than ever your family members will rely on you as an advocate for their mental and physical well-being. Even if you are unable to physically visit, it would be prudent to increase your phone calls and virtual visits. The March 13, 2020 CMS pronouncement states that facilities should consider offering alternative means of communication for people who would otherwise visit, such as virtual communications (phone, video-communication, etc.). The March 23, 2020 CMS pronouncement references the earlier memorandum and once again urges facilities to implement measures to increase communication with families via phone, face-time, skype, etc.

The above referenced guidelines also encourage nursing homes to open up communications between family members and staff to enable family members to remain informed of the care their loved ones are receiving and of any changes in their condition.

If you feel that your family member or loved one has been injured during the period of your compelled absence, please call our firm to discuss your options.


Attorney Advertising: The information presented is intended to help you understand your rights, it is not intended to provide legal advice. Prepared 4/7/2020 by Jonathan Minkove, Esq. and Michael B. Zaransky, Esq.