N.Y. Comp. Codes R. & Regs. tit. 18 § 485.18

Current through Register Vol. 46, No. 45, November 2, 2024

Section 485.18 - Personal and Compassionate Caregiving Visitation

(a) This section shall apply to all adult care facilities, including every adult care facility regulated pursuant to Parts 487, 488 and 490 of this Title and Part 1001 of Title 10 of the NYCRR.

(b) Subject to the resident's right to deny or withdraw consent at any time, all adult care facilities must provide immediate access to any resident of visitors of their choice, including but not limited to immediate family or other relatives of the resident and any others who are visiting with the consent of the resident. Provided, however, that the facility may establish policies and procedures to establish reasonable restrictions on such visitation, including but not limited to: setting forth visitation hours; denying access to any visitor suffering from a communicable disease; terminating visitation with any visitor causing a threat to the health or safety of any resident; and setting a cap on the number of visitors allowed in the facility at any one time. Any such restrictions or limitations on visitation shall be communicated in writing to residents.

(c) Personal caregiving visitors.

(1) During a public health emergency declared under section twenty-four or section twenty eight of the executive law, the facility must continue to allow residents to access their designated personal caregiving visitors, as defined in subdivision (1) of section 2801-h of the Public Health Law, notwithstanding any restrictions or prohibitions relating to residential health care facility visitation resulting from the declared public health emergency, subject to the following restrictions:

(i) If a facility has reasonable cause to believe that a resident will not benefit from accessing their designated personal caregiving visitors, and such reasoning has been documented in the resident's case management record, a facility may require a health or mental health professional duly licensed or certified in New York State under the Education Law, and who is not associated with the facility, including but not limited to a physician, registered nurse, licensed clinical social worker, psychologist, or psychiatrist, to provide a written statement that the personal caregiving will substantially benefit the resident's quality of life, including a statement from such medical provider that the personal caregiving visitation will enhance the resident's mental, physical, or psychosocial well-being, or any additional criteria evidencing a benefit to quality of life as determined by the Department. Such written statements shall be maintained in the resident's case management record.

(ii) Notwithstanding any provision of this paragraph, a facility may temporarily suspend or limit personal caregiving visitors to protect the health, safety and welfare of residents, if: the declared public health emergency is related to a communicable disease and the Department determines that local infection rates are at a level that presents a serious risk of transmission of such communicable disease within local facilities; the facility is experiencing temporary inadequate staffing and has reported such staffing shortage to the Department of Health any other State or federal agencies as required by law, regulation, or other directive; or an acute emergency situation exists at the facility, including loss of heat, loss of elevator service, or other temporary loss of an essential service. Provided, however, that in the event a facility suspends or limits personal caregiving visitation pursuant to this subparagraph, the facility shall notify residents, all designated personal caregiving visitors, and the applicable Department regional office of such suspension or limitation and the duration thereof within twenty-four hours of implementing the visitation suspension or limitation. Additionally, for each day of the suspension or limitation, the facility shall document the specific reason for the suspension or limitation in their administrative records. The facility shall further provide a means for all residents to engage in remote visitation with their designated personal caregiving visitor(s), including but not limited to phone or video calls, until such time that the suspension or limitation on personal caregiving visitation has ended.

(iii) Notwithstanding any provision of this paragraph, a facility may also prohibit a personal caregiving visitor from entering if the facility has reasonable cause to believe that permitting the personal caregiving visitor to meet with the resident is likely to pose a threat of serious physical, mental, or psychological harm to such resident. In the event the facility determines that denying such personal caregiving visitor access to the resident is in the resident's best interests pursuant to this subparagraph, the facility must document the date of and reason for visitation refusal in the resident's case management record, and on the same date of the refusal the facility shall communicate its decision to the resident and their designated representative. Further, a facility may refuse access to or remove from the premises any personal caregiving visitor who is causing or reasonably likely to cause physical injury to any facility resident or personnel.

(2) The facility shall develop written policies and procedures to ask residents, or their designated representatives in the event the resident lacks capacity, at time of admission or readmission, or for existing residents within fourteen days of the effective date of this paragraph, which individuals the resident elects to serve as their personal caregiving visitor during declared local or state health emergencies. A resident shall be entitled to designate at least two personal caregiving visitors at one time.

(3) The facility shall maintain a written record of the resident's designated personal caregiving visitors in the resident's case management record, and shall document when personal caregiving and compassionate caregiving is provided in the case management record.

(4) As part of its ongoing review of a resident's case management needs, the facility shall regularly inquire of all current residents, or their designated representative if the resident lacks capacity, whether the facility's current record of designated personal caregiving visitors remains accurate, or whether the resident, or their designated representative if the resident lacks capacity, wishes to make any changes to their personal caregiving visitor designations. The facility shall update the resident's case management record with the date the facility sought updates from the resident and indicate any changes to the resident's personal caregiving visitor designations therein. Such inquiries shall be made no less frequently than every six months and upon a change in the resident's condition; upon review of a facility's visitation policies and procedures, the Department may also require the facility inquire of any resident whether the facility's current record of designated personal caregiving visitors remains accurate.

(5) The facility shall require all personal caregiving visitors to adhere to infection control measures established by the facility and consistent with any guidelines from the Department, or in the absence of applicable Department guidance, consistent with long term care facility infection control guidelines from the U.S. Centers for Disease Control and Prevention. Such infection control measures may include, but need not be limited to:

(i) testing all personal caregiving visitors for any communicable disease that is the subject of the declared public health emergency, which may include rapid on-site testing or requiring the visitor to present a negative test result from no more than seven days prior to the visit;

(ii) checking the personal caregiving visitor's body temperature upon entry to the facility, and denying access to any visitor with a temperature above 100 degrees Fahrenheit;

(iii) conducting health screenings of all personal caregiving visitors upon entry to the facility, including screenings for signs and symptoms of any communicable disease that is the subject of the declared public health emergency or any other communicable disease which is prevalent in the facility's geographic area, and recording the results of such screenings;

(iv) requiring all personal caregiving visitors to don all necessary personal protective equipment appropriately, and providing such personal protective equipment to all personal caregiving visitors; and

(v) enforcing social distancing between persons during visitation, including personal caregiving visitation, except as necessary to provide personal caregiving by the personal caregiving visitor for the resident.

(6) The facility shall establish policies and procedures regarding the frequency and duration of personal caregiving visits and limitations on the total number of personal caregiving visitors allowed to visit the resident and the facility at any one time. Such policies shall not be construed to limit access by other visitors that would otherwise be permitted under state or federal law or regulation. The facility shall ensure its policies and procedures respect resident privacy and take into account visitation protocols in the event a resident occupies a shared room. In establishing frequency and duration limits, the facility policy shall ensure that residents are able to receive their designated personal caregiving visitors for the resident's desired frequency and length of time, and any restrictions on that desired frequency and duration must be:

(i) attributable to the resident's clinical or personal care needs;

(ii) necessary to ensure the resident's roommate has adequate privacy and space to receive their own designated personal caregiving visitors; or

(iii) because the desired visitation frequency or duration would impair the effective implementation of applicable infection control measures, including social distancing of at least six feet between the visitors and others in the facility, having sufficient staff to effectively screen all personal caregiving visitors and monitor visits to ensure infection control protocols are being followed throughout, and having a sufficient supply of necessary personal protective equipment for all personal caregiving visitors.

(d) Compassionate caregiving.

(1) In the event a resident experiences a long-term or acute physical, mental, or psychosocial health condition for which, in the opinion of the resident, their representative, or a health care professional (including but not limited to a physician, registered nurse, licensed clinical social worker, psychologist, or psychiatrist), a compassionate caregiving visitor would improve the resident's quality of life, the resident or their representative shall designate at least two compassionate caregiving visitors at one time, and the facility shall record such designation in the resident's case management record. A resident's designated personal caregiving visitors may also provide compassionate caregiving.

(2) Situations in which a resident is eligible for a compassionate caregiving visitor include but are not limited to the following:

(i) end of life;

(ii) the resident, who was living with their family before recently being admitted to an adult care facility, is struggling with the change in environment and lack of physical family support;

(iii) the resident is grieving after a friend or family member recently passed away;

(iv) the resident needs cueing and encouragement with eating or drinking, and such cueing was previously provided by family and/or caregiver(s), and the resident is now experiencing weight loss or dehydration; and

(v) the resident, who used to talk and interact with others, is experiencing emotional distress, seldom speaking, or crying more frequently (when the resident had rarely cried in the past).

(3) Compassionate caregiving visitation shall be permitted at all times, regardless of any general visitation restrictions or personal caregiving visitation restrictions in effect in the facility. Provided, however, that the facility shall require compassionate caregiving visitors to be screened for communicable diseases prior to entering the facility and visits must be conducted using appropriate social distancing between the resident and visitor if applicable based on guidance from the Department or the U.S. Centers for Disease Control and Prevention; if, however, personal contact would be beneficial for the resident's well-being, the facility shall establish policies and procedures to ensure such physical contact follows appropriate infection prevention guidelines, including the visitor's use of personal protective equipment and adhering to hand hygiene protocols before and after resident contact, and that physical contact is limited in duration.

(e) The Department shall have discretion to review and require modifications to a facility's personal caregiving visitation and compassionate caregiving visitation policies and procedures to ensure conformity with subdivisions (c) and (d) of this section and any applicable visitation guidelines issued by the Department or the Centers for Medicare and Medicaid Services.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 485.18

Adopted New York State Register June 16, 2021/Volume XLIII, Issue 24, eff. 6/16/2021