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Covid-19 Resources on Medicaid in NYS - - Home Care in-person assessments required -- Nursing Home Visitation Updated -

27 Jul, 2021

This article describes laws, policies and  procedures developed by the federal government (CMS),  the NYS Department of Health (DOH), and by New York City is HRA to protect Medicaid during the Public Health Emergency.   On this page we will gather links to helpful resources and to key government guidance, as well as describe advocacy done by NYLAG, Legal Aid Society, Empire Justice Center, Bronx Legal Services, and other organizations regarding Medicaid. 

NYLAG consumer-friendly guide to many Covid-19 changes in  benefits                                                       https://www.nylag.org/covid19/ -- 

Information on Housing, benefits,  employment & unemployment, courts, taxes, powers of attorney, and many other benefits.   For HEALTH, click on  Medicaid (Applying), Medicaid (Home Care), Medicaid (If you Already Have), or Medicare.

In This Article:

  1. NEWS UPDATES

  2. Medicaid Home Care - NYS Dept. of Health Policies and Procedures & Consumer Advocacy

  3. Medicaid  Eligibility & Covid in NYS - 

  4. NYS OTDA Fair Hearing Information

  5. ADVOCACY by NYLAG and other CONSUMER ADVOCATES 

  6. Emergency Medicaid for Undocumented Immigrants - Covers Covid-19 Testing & Treatment 

  7. How do Covid-19 Federal Stimulus Payments impact SSI, Medicaid & other Benefits - including for Nursing Home & Adult Home Residents?

  8. Federal Authorities Allowing States flexibility in Disasters + NYS Request for  1135 Waiver

  9. NYS Dept. of Health Guidance for Health Care Providers

  10. Compilations of Resources from National & NYS Organizations

1.  NEWS UPDATES

 2.  Medicaid Home Care - NYS Dept. of Health

DOH guidance to Medicaid providers here and  to all health care providers at this inkSee below for some key provider directives from DOH.  

Key Medicaid  home care guidance relevant for consumers:

  • July 26, 2021 Rescission of COVID-19 Guidance for the Authorization of Community Based Long Term Services and Supports Covered by Medicaid  RESCINDS the following guidance:

    • April 8, 2020 updating Mar. 18, 2020 -  COVID-19 Guidance for the Authorization of Community Based Long-Term Services and Supports Covered by Medicaid – UPDATED 4.8.20   RESCINDED 7/26/21 but gives "transition guidance" that continues some of the COVID rules, as follows:

      • For Medicaid Managed care and MLTC plans, local Medicaid agencies, CDPAP agencies

      1. PHYSICIAN ORDERS - After 7/26/21, still allows physician to complete M11q/Physician's order by telehealth or telephone, without an in-person visit.  However, physician may NO LONGER phone in order to initiate services, which before had allowed MD to follow up with written orders within 120 days.  

      2. "Community Health Assessments" - a/k/a UAS Nurse Assessments - 7/28/21 guidance RESCINDS guidance allowing UAS nurse assessment to be completed by telehealth or telephone  - must now be completed IN PERSON (by MLTC plans and local Medicaid agencies), and he conflict-free assessment by NY Medicaid Choice.  Gives plans 90 days to complete an in-person UAS for anyone who had a "temporary" plan of care based on a partially completed UAS. 

      3. Periodic re-assessments by nurses for managed care, MLTC and local Medicaid offices  and 6-month care management visits for MLTC- these had been suspended, but  the 7/26/21 Guidance requires them to resume IN-PERSON, no more by phone or telehealth.  Gives a phased in schedule for plans and LDSS to complete reassessments for those who were not assessed during the pandemic. 

      4. CDPAP personal assistants annual health reassessment - had been suspended but 7/26/21 guidance REQUIRES them to be done by 9/30/21.   

      5. UAS Nurse Assessments in Facilities (Nursing Homes) (does not mention Hospitals)  --7/26/21 Guidance says "where possible" in-person assessments  must resume, but with masks and social distancing as required by facility.   This would include conflict-free assessments by NY Medicaid Choice or Immediate Need assessments by the local Medicaid office/CASA and enrollment visits  or other assessments by MLTC plans. 

      6. 7/26/21 - Instructions for Provider Personnel at Risk of COVID - providers should have policy to screen personnel for COVID symptoms/risk prior to home or in-person visits with consumers, and to send person home/ prevent in-home visit if sick.

  • Annual health assessment sfor all personnel - were originally suspended  by an April 10, 2020 Dear Administrtor Letter but on October 14, 2020, the state issued a new Dear Administrator Letter  lifting its suspension and requiring annual health assessment by December 31, 2020.

  • DOH Update: Home and Community-Based Services Regarding COVID-19 (Updated June 18, 2020)
  • April 10, 2020  NYS DOH Dear Administrator Letter (see here) to CHHAs, LHCSAs, LTHHCPs, and Hospice programs, the state Department of Health has suspended or changed the following regulations.

    • The annual health assessment has been temporarily suspended for all employees.    These assessments were reinstated again with Oct.  14, 2020 directive.

    • New employees may have health assessments completed by telehealth or by an RN. New employees must follow guidelines in place for all staff, including daily symptom screenings and at least daily temperature checks.

    • All CHHAs, LTHHCPs, AIDS home care programs and LHCSAs serving individuals affected by the COVID-19 public health emergency may conduct in-home and in-person supervision through indirect means, including by telephone or video communication, as soon as is practicable after the initial visit.

  • April 23, 2020  COVID-19 Guidance for Voluntary Plan of Care Schedule Change (Web)  (PDF) - 
    • Allows voluntary changes in service plans, presumably mostly reductions in hours of home care, on a temporary basis because of the pandemic.  Plan must confirm the change in writing and have the consumer sign agreement.  Plan must reinstate original service plan on 72 hours request.  Advocacy concern exists allowing plan to reach out to consumers to ask for consent to a voluntary change-- this outreach is supposed to be limited to those consumers who have "refused or cancelled services because of concerns about COVID-19 exposure," or who are known to have available informal caregivers, but will consumers be pressured to agree to temporary reductions?    See FACT SHEET for CONSUMERS - KNOW YOUR RIGHTS!
    • This guidance does not expressly prohibit but should prevent plans from disenrolling members who have refused or cancelled services because of COVID. 

ADVOCACY:

3. Medicaid Eligibility Rules in the Public Health Emergency

3a. NO MEDICAID CASE CLOSINGS OR REDUCTIONS  - Automatically Extensions at Renewal  - and Spend-down cannot be Increased 

Under Families First Coronavirus Response Act signed on March 18, 2020, establishes a moratorium on Medicaid case closings or reductions.  No Medicaid recipient will lose their coverage after March 18, 2020 through the end of the Public Health Emergency.   This is  part of the "Maintenance of Effort"  requirement contained in the Families First law - that gives States extra federal money toward Medicaid costs because of the pandemic, but requires that in return, states may not cut off Medicaid for anyone who had it on March 18, 2020 or who becomes enrolled after that date.  See info about federal rules implemented by the Trump administration that threaten these protections. 

  • HOW LONG IS THE PUBLIC HEALTH EMERGENCY?   Likely until Dec. 31, 2021 -- The Public Health Emergency has been repeatedly extended -- most recently on April 15, 2021 by HHS Order.   See earlier extensions here As a result of this latest extension, all of the flexibilities described fbelow or applications and renewals and the ban on discontinunces extend through July 2021, but in a letter to State governors the Biden administration said to expect that the Public Health Emergency (PHE) will likely be extended through the end of 2021, and that states will receive 60 days advance notice before it ends, allowing States time to plan for "unwinding" the COVID moratorium on case closings, etc.   Under the Trump Administration, the PHE  was extended every 3 months, leaving much uncertainty.   See this Georgetown Health Policy Institute blog about the Biden extension.   Stay tuned for updates about what this means in NYS. 
  • WHAT IS THE MORATORIUM BANNING CASE CLOSINGS and REDUCTIONS?  The main State directive issued to comply with this "maintenance of effort" requirement in federal law is GIS 20 MA/04, updated in GIS 20 MA/11.  -- The moratorium means:

    • Medicaid cannot be discontinued by the local Medicaid agency or NYSofHealth even for someone who is no longer eligible..  

    • People who lose SSi or Cash Assistance normally have to go through a recertiification process to keep their Medicaid (called the Stenson and Rosenberg procedures in NYS).   While they will still receive mail asking them to complete and return the renewal forms, their Medicaid should not be discontinued even if they do not to so. 

    • AUTOMATIC ONE-YEAR EXTENSIONS of ELIGIBILITY - If Medicaid was authorized for a period ending March 31, 2020 through September 30, 2021 (will likely be extended),  the local district must recertify  Medicaid  for 12 months, regardless of whether the recipient  fails to return the annual renewal forms or respond to requests for information - Medicaid will NOT BE DISCONTINUED.  DOH explains this will allow districts to devote the reduced staff to new applications rather than routine renewals.   This is also true even if the recipient reports information that would normally make them ineligible for Medicaid, or would increase their spend-down  

      • NYS DOH has not updated GIS 20 MA/04, updated in GIS 20 MA/11 to keep extending the authorization period dates entitled to  automatic extensions of eligibility.  Instead, DOH is notifiying  the local districts of these extensions informally.  NYC HRA issues Alerts periodically that state the latest extensions.  Most recently, the HRA Alert dated May 21, 2021  says authorization periods ending Sept. 30, 2021 wll be automatically extended.  NYC HRA 05/21/2021 New York State Medicaid Program Modifications COVID-19 Emergency.  See more NYC alerts here

    • Those who had MAGI Medicaid and turn 65,  or become eligible for Medicare based on disability, would normally have their Medicaid transferred from NYSofHealth to the local district, to be redetermined under non-MAGI Medicaid rules.  Instead, they will  have Medicaid automatically extended for 12 months.   

      • However, during this emergency,  cases are not referred to the districts and coverage is just extended by NYSofHealth.  They will not have to show that they applied for Medicare, or applied for VA benefits  if they are veterans, contrary to the usual rule.  Some cases may still be referred manually to the LDSS, such as those who need nursing home care, since institutional Medicaid can only be authorized by the LDSS even if eligibility is based on MAGI.  

      • Also,  these individuals are mostly in Medicaid managed care plans.  They remain in these plans during the emergency, even though they now have Medicare.  Normally, they are dis-enrolled from these plans once they obtain Medicare. If they need Medicaid home care, they request it from their plan.  

    • "Individuals in the Medicaid Buy-In Program for Working People with Disabilities who have
      experienced job loss as a result of the COVID-19 emergency must be given a grace period
      due to loss of work. If applicable, the grace period should be extended for six (6) additional
      months."  
      GIS 20 MA/04  The DOH 5/20/20 FAQ clarifies that the initial extension is 6 months, and "an additional six-month period will be provided if needed to look for new employment."  (FAQ #16).

    • Medicaid may not be discontinued for "whereabouts unknown" if correspondence from the LDSS/HRA is returned.  GIS 20 MA/04 p. 3

    • If had active Medicaid because of "Aid Continuing" on March 18, 2020, this must continue GIS 20 MA/04 p. 6.    The May 20, 2020 DOH FAQ clarifies that  "your Medicaid coverage will continue under Aid to Continue status even if you lose your fair hearing."  (FAQ #7)

    • Surplus/Spend-down Cases -- If the spend-down was met in March, the LDSS/HRA will put up coverage for 6 months.  NYC Recipients who have problems submitting bills should follow the instructions on the HRA  policy  - and elsewhere contact their local district office. A spend-down may be reduced, but not increased, during the emergency (GIS 20 MA/04)  The May 20, 2020 DOH FAQ states further regarding spend-down, in FAQ #10:

      10. I participate in the Medicaid Excess-Income or Pay-In program, but I have been unable to submit a bill or payment due to the COVID-19 emergency. What should I do?
    • Contact your local district or, if you pay your spenddown to a Managed Long Term your Care Plan, contact your plan, as soon as possible. Explain that you haven´t been able to submit your bills or pay your spenddown due to the COVID-19 emergency.

    • Save your receipts or the monthly amounts of your pay-in (spenddown) because you may be asked to provide them at the end of the COVID-19 emergency period.

    • FOR MORE INFO ABOUT THE FEDERAL  MAINTENANCE OF EFFORT REQUIREMENT see - The National Health Law Program fact sheet, available here, The Trump administration in its last days published federal regulations called the Interim Final Rule that chip away at the moratorium on case closings and reductions, allowing states to make some adverse changes on eligibility.  NYLAG joined with the National Health Law Program and other organizations opposing this rule.  See Kaiser 12/20 article here

    • Invoking this Trump federal rule, some states are cutting off Medicaid and replacing it with the Medicare Savings Program, or shifting QMB eligibility to the less generous SLIMB or QI-1 eligibility.  We commend NYS for not making these changes

3b.  STATE and NYC MEDICAID POLICIES:

NYS Directives

New York City Directives - also see NYC HRA Health Assistance Webpage

3.c. APPLICATIONS

  • Allows self-attestation of income, assets and most other factors of eligibility on applications, renewals and requests for increased coverage, except for documenting citizenship and immigrant status on applications

  • MAY NOT ATTEST TO these - need to submit documentation ( per DOH FAQ May 20, 2020) - Q. 11, 

    • Citizenship and Immigration StatusGIS 20 MA/04 p. 3 - DSS/HRA will try to verify status through SSA data match.  If that can't be done and documentation is needed, DSS/HRA will put up 90 days of coverage while applicant has an opportunity to obtain documentation.   If the emergency period has not ended after 90 days, it will be extended for another 90 days if applicant still hasn't obtained documentation.  See 10 OHIP ADM-8 for procedures "to give a reasonable opportunity period to consumers who are attesting to be U.S. Citizens."

    • Pre-Paid Burial Agreements -   must submit proof that the agreement is final and irrevocable.

    • Trusts - including Pooled Income Trusts - Copies of all trust documents are still required.  Regarding the disability documents for SNT, the DOH FAQ #4 says:

4. I am over 65 and need a disability determination so that I can apply for Medicaid using a pooled trust. I cannot get an appointment with my doctor to complete, sign, and date the NYS disability papers because of the COVID-19 emergency. What can I do?

You should first contact your local district and file your Medicaid application. Your local district staff and Department of Health staff can then help you with the necessary paperwork to process your disability determination. They can also help if you are under age 65 and need a disability determination for Medicaid.

Comment:  How would LDSS or DOH help with the paperwork?

  • Individuals turning 65 do not have to apply for Medicare, SSA or VA benefits as a condition of eligibility

  • Do not have to respond to reports received by local DSS after  3/1/20 -- that a Social Security number could  not be verified, or that a resource appeared on an electronic match or could not be verified

  • No proof of Third Party coverage is required - local districts are not required to make
    new cost effective determinations for possible reimbursement if sufficient information
    is not available.   But if insurance ends, district may stop payment of premium.  
    GIS 20 MA/04 p.6

  • WHERE TO APPLY - Every local DSS has its own procedures.

    • HRA informed advocates that all Medicaid & Medicare Savings Program applications for people who are age 65+ or who are disabled and have Medicare, so cannot apply on NYSofHealth  - can

      • E-FAX applications to 917-639-0732  (HRA PREFERS this to mailing! 

MAKE CLEAR ON APPLICATION IF SEEKING TO ENROLL IN MLTC, or SEEKING MEDICAID ONLY.  
Mail in Unit
MICSA
505 Clermont, 5th Floor
Brooklyn, NY 11238
  • Application Signatures – from GIS 20 MA/04 p.4- 5: and also see 5/20/2020 DOH Consumer FAQ (#2)
    • "During this period, for individuals in hospitals or nursing homes, the Access NY application (DOH-4220-I) and/or Supplement A (DOH-5178A) can be signed by someone acting on the individual’s behalf .
    • If a signature on the application cannot be obtained from the applicant/recipient (A/R) or the A/R’s spouse, Attachment 1  to  17ADM-02 - Asset Verification System , “Submission of Application on Behalf of Applicant” DOH-5147 (MAP-3044 for NYC A/Rs), must be signed by the person signing and submitting the application and must accompany the application. In Section C of the DOH-5147 (Reason for Submission/Section II of the MAP-3044) “COVID-19” should be noted if the A/R cannot sign the form due to access issues. All information must be completed on the application.

    • If a signature can be obtained from the applicant/recipient, Section D (Authorization to Apply for Medicaid on Applicant’s Behalf) of the DOH-5147 form should be signed by the A/R authorizing another person or the facility to apply on behalf of the individual.

  • Aged, Blind and Disabled (ABD) Facilitated Enrollers (FE  outside NYC) (in NYC) who are unable to assist individuals in person during this time will be following a similar process with one exception: the DOH-5147 form (or MAP-3044  form) will be signed by the applicant authorizing the ABD. 

 from GIS 20 MA/04 p.4- 5  and see  DOH FAQ #2 

  • Requests for Information while Application pending - from GIS 20 MA/04 p. 5

... During this period, if an application or
Supplement A is missing required information, the district should contact the applicant,
authorized representative or the person submitting the application on behalf of the applicant,
if applicable, by email or telephone to obtain the necessary information. The district does not
need to receive the information in writing and can accept information verbally. The eligibility
staff should note in the case record any information obtained by phone and make a notation
in the case record that information was received verbally due to COVID-19 circumstances.

If after three (3) attempts, the local district is unable to contact the individual, the individual’s
authorized representative or the person who submitted the application on behalf of the
applicant (including when no response is received from an email contact), the local district
must send a written request to the individual and the authorized representative or person
submitting the application on behalf of the applicant, for the missing information. The request
sent must include a response due date of no less than 10 days. Information concerning how
the missing information can be given to the district by telephone and/or email must be
included in the letter sent requesting the information.

The DOH FAQ 5/20/20, states,  "If you don´t provide the missing information your application may be denied." (FAQ #3). 

  • MSP/Medicare Insurance Payment Program/ Health Insurance Premium Payment program  “the department can assist districts, if needed, with an extension of MIPP (Medicare reimbursements) and HIPP (health insurance reimbursements) payments to coincide with the extension of an individual’s authorization period.” 

4.  NYS Medicaid FAIR HEARINGS - Office of Temporary  & Disability Assistance

5.   CONSUMER ADVOCACY - by NYLAG and OTHER CONSUMER ORGANIZATIONS 

NURSING HOMES -

HOME CARE

MEDICAID FAIR HEARINGS - NYS Office of Temporary & Disability Assistance

  •   Letter to OTDA 3/24/20 Requesting Clarification of GIS above and for protections for appellants in the new phone hearing procedures - from NYLAG, Legal Aid Society, Empire Justice Center & other organizations. 

6. Emergency Medicaid for Undocumented Immigrants - Covers Covid-19 Testing & Treatment 

Emergency Services Only” Coverage - Medicaid Update Number 7March 2020 Special Edition -
COVID-19
 Coverage and Reimbursement Policy (published: 3/27/2020) (Web) or (PDF) — (Redline PDF).

NYS Medicaid coverage for undocumented immigrants is limited to emergency services only. COVID­19 lab testing, evaluation, and treatment are emergency services and will be reimbursed by NYS Medicaid for individuals with coverage code “07.” Claims submitted for COVID-19 tests and practitioner office visits for the purpose of COVID-19 testing, evaluation, and/or treatment should be identified as an emergency by reporting Emergency Indicator = Y.

Institutional providers (emergency department, hospital outpatient/diagnostic and treatment center, FQHC, and hospital inpatient) should report Type of Admission Code = 1 to indicate an emergency when the purpose of the visit is for testing, evaluation, and/or treatment related to COVID-19.

There is no copay for emergency services including testing, evaluation, and treatment for COVID-19.

7.  How do Covid-19 Federal Payments impact SSI, Medicaid & other Benefits?

Clarifies that the one-time Stimulus payments and the $600 weekly Pandemic Unemployment compensation are not countable income for Medicaid, including under post-eligibility budgeting used in nursing home Medicaid, meaning that the payments will not be counted toward the NAMI (Net Available Monthly Income).  
CARES ACT: ...Notwithstanding any other provision of law, any refund (or advance payment with respect to a refundable credit) made to any individual under this title shall not be taken into account as income, and shall not be taken into account as resources for a period of 12 months from receipt, for purposes of determining the eligibility of such individual (or any other individual) for benefits or assistance (or the amount or extent of benefits or assistance) under any Federal program or under any State or local program financed in whole or in part with Federal funds. 

Click on https://www.nylag.org/covid19/ and go to Economic Stimulus Payments

8.  Federal Authorities Allowing States Flexibility in Disasters - and New York Application to CMS 

9. Selected NYS DOH Guidance for Health Care Providers - of Interest to Advocates

These are just a few of the many guidance documents issued nearly every day - check

GUIDANCE FOR MEDICAID PROVIDERS - https://health.ny.gov/health_care/medicaid/covid19/index.htm

GUIDANCE FOR ALL HEALTH CARE https://coronavirus.health.ny.gov/information-healthcare-providers 

TELEHEALTH  -NYSDOH has issued a “broad expansion for the ability of all Medicaid providers in all situations to use a wide variety of communication methods to deliver services remotely.”   

  • Medicaid Update Special Edition: Comprehensive Telehealth Guidance (Web) or (PDF) (published: 5/1/2020).
    • Frequently Asked Questions (FAQs) on Medicaid Telehealth Guidance during the Coronavirus Disease 2019 (COVID-19) State of Emergency - (Web) - (PDF) - Updated 5.1.2020
    • Webinar: New York State Medicaid Guidance Regarding Telehealth, Including Telephonic, Services During the COVID-19 Emergency - 5.5.2020

HOME CARE, WAIVER PROGRAMS, PRIVATE DUTY NURSING, DME

  • Home Care Association of NYS - Covid-19 Resource Page

  • October 14, 2020, Dear Administrator Letter lifting  eaerlier suspension of the annual health assessment for all personnel. All personnel are advised to obtain an annual health assessment by December 31, 2020.

  • April 10, 2020  NYS DOH Dear Administrator Letter (see here) to CHHAs, LHCSAs, LTHHCPs, and Hospice programs, the state Department of Health has suspended or changed the following regulations.

    The annual health assessment has been temporarily suspended for all employees (but were later reinstated 10/14/20).

New employees may have health assessments completed by telehealth or by an RN. New employees must follow guidelines in place for all staff, including daily symptom screenings and at least daily temperature checks.

All CHHAs, LTHHCPs, AIDS home care programs and LHCSAs serving individuals affected by the COVID-19 public health emergency may conduct in-home and in-person supervision through indirect means, including by telephone or video communication, as soon as is practicable after the initial visit.

ADULT DAY CARE PROGRAMS - Medical Model and Social Model

  • Medical Model Adult Day Care centers may reopen in a limited capacity - Mar. 25, 2021 

  • Adult Day Health Care centers - closed  (March 13, 2020) (Medical Model programs only; DOH does not regulate social adult day care but they are apparently also closed) 

    • Medical Model ADHC programs may offer telehealth services --  COVID–19 Telephonic and Telehealth Services Available to Statewide Adult Day Health Care Program Services – (Web) – (PDF) 03.28.20.  COMMENT:  MLTC plans should continue to contract with ADHC for telehealth. 

    •  4/7/20 - Social Adult Day Care programs may offer telehealth services for MLTC plans - COVID-19 Guidance for Providing Adult Social Day Care (SDC) Services Telephonically. (Web) - (PDF) 

    • Questions and Answers Related to COVID-19 Guidance for Providing Adult Social Day Care (SDC) Services Telephonically, (May 16, 2020)(MLTC plans REQUIRED TO offer telephonic/telehealth  SDC services to members, and plan must reach out to members who received the SDC service before they closed down 3/18, and offer either telehealth or telephone services from SDC.  (NOTE that does not require MLTC to offer increased home care services in lieu of the day care services)  

      • SDC programs may offer home-delivered meals, and MLTC plan can contract with the SDC to provide them.  

Nursing Homes and Adult Care Facilities - Assisted Living

  • July 8, 2021 - NYS DOH updates guidance on NURSING HOME VISITATION and separate guidance on ADULT HOME/ASSISTED LIVING Visitation.  As the Long Term Care Community Coalition observed,  the July 8th Nursing Home guidance is somewhat inconsistent -- at the beginning it states that the use of PPE and social distancing are required, but then later on it states:

    • If the resident is fully vaccinated, they can choose to have close contact (including touch) with an unvaccinated visitor while both are wearing a well-fitting face mask and performing hand-hygiene before and after. 
    • If both the resident and their visitor(s) are fully vaccinated, and the resident and visitor(s) are alone ..., the resident and visitor may choose to have close contact (including touch) without a mask or face covering. 
    • Regardless, visitors should physically distance from other residents and staff in the facility. 

  • April 27, 2021 - CMS updated guidance expanding Nursing Home Visitation in iight of the vaccination of many residents and staff.   CMS updated this guidance in conjunction with the CDC guidance also updated April 27, 2021.  The CMS guidance states:

    • "Facilities shall not restrict visitation without a reasonable clinical or safety cause, consistent with 42 CFR § 483.10(f)(4)(v). A nursing home must facilitate in-person visitation consistent with the applicable CMS regulations, which can be done by applying the guidance stated above. Failure to facilitate visitation, without adequate reason related to clinical necessity or resident safety, would constitute a potential violation of 42 CFR § 483.10(f)(4), and the facility would be subject to citation and enforcement actions.

    • Residents who are on transmission-based precautions for COVID-19 should only receive visits that are virtual, through windows, or in-person for compassionate care situations, with adherence to transmission-based precautions. However, this restriction should be lifted once transmission-based precautions are no longer required per CDC guidelines, and other visits may be conducted as described above."

    • If a nursing home is not following the revised CMS/CDC guidance,  file a complaint with the NYS health department, making clear any harm or suffering that is resulting from the resident’s isolation. This includes emotional distress and psycho-social harm, which the health department is required to take seriously.  Seek help from your local Long Term Care Ombudsman office.  

    • The memo includes information and direction on specific issues including:

      • Clarifying compassionate care
      • Visitation during an outbreak
      • Access to LTC Ombudsman services
      • Communal activities and dining
      • Federal disability law rights and protections
  • Mar. 25, 201 - NYS DOH Issues Guidance Expanding Nursing Home Visitation - more info on this will be posted soon.  Rules are complicated so it needs to be read through carefully. 

  • Mar. 10, 2021 - CMS Issues Revised Guidance Expanding Nursing Home VisitationThe guidance  - QSO-20-39-NH REVISED  - and CMS  fact sheet.  

    • See Frequently Asked Questions: LTSS Visitation Rights & COVID-19  by the National Center on Law & Elder Rights (NCLER).  

    • Also see summary from  the Consumervoice.orgthe new guidance allows indoor and outdoor visits for all residents, except in limited circumstances.  Infection prevention protocols are still in place and must be followed by all visitors.  Visitation is allowed regardless of vaccination status.

      Limitations on visitation may occur: for unvaccinated residents if the COVID-19 county positivity rate is greater than 10% and less than 70% of residents in the facility are fully vaccinated; for residents with COVID-19, regardless of vaccination status, until they have met criteria to discontinue precautions; or for residents in quarantine, regardless of vaccination status, until they have met criteria to be released from quarantine.

      Compassionate care visits should be allowed at all times, regardless of vaccination status, an outbreak in the facility, or the county's positivity rate.

      While CMS and CDC recommend that the core principles of infection prevention be followed at all times, including physical distancing, if a resident is fully vaccinated, they can choose to have close contact (including touch) with their visitor while wearing a well-fitting mask and performing hand hygiene.  

  • Feb. 26, 2021 -  New  NYS guidelines for nursing home visitation take effect  Visitations are contingent on a county’s COVID-19 risk level, as well as the nursing home facility being free of COVID-19 cases for 14 days, and have a COVID-19 testing requirement if the county positivity rate is 5% or higher. Visitations are not permitted if the county positivity rate is 10% or higher, however, compassionate care visits are permitted regardless of positivity rate.  Advocates are asking CMS to open up visitation more broadly.

  • Congregate Facility Visitation in Micro-Cluster Zones (suspends visitation in RED and ORANGE zones, with exceptions for "compassionate" or "medically necessary" care, accompanying a minor, etc. and superseding the 9/17/20 guidance in those zones described below), dated  Oct. 23, 2020 - Look up an address to see if falls into a Red, Orange, or Yellow Zone. 

  • Health Advisory: Revised Skilled Nursing Facility Visitation   (NYS 9/17/20), revising guidance issued on 9/15/20 based on intervening CMS guidance issued on 9/17/20 -  Nursing Home Visitation - COVID-19 (CMS, 9/17/20).  State 9/17/20 guidance places many conditions on visitation - no new COVID positive tests in 14 days, weekly staff testing, many other requirements - see guidance. 

  • Deaths in Nursing Homes from COVID - by NH (NYS DOH -  - check link for frequent updates)

  • Visitation in Adult Care Facilities - rules for visitation in Phase 3 areas (July 10, 2020)

  • Health Advisory: COVID-19 Cases in Nursing Homes and Adult Care Facilities  (Mar. 13, 2020, revised July 10, 2020)(limited visitation expanded to Long Term Care Ombudsprogram) 

  • DAL 20-14: Required COVID-19 Testing for all Nursing Home and Adult Care Facility Personnel (requires weekly testing of all staff including private or Medicaid aides) (May 11, 2020)

  • Advisory: Hospital Discharges and Admissions to Nursing Homes (Mar. 25, 2020)(Nursing homes must automatically re-admit residents who are temporarily hospitalized, even if they test positive for COVID-19)

  • Guidance Regarding Adult  Care Facilities and CoronaVirus (Mar. 22, 2020)

  • Recommendations to Protect Nursing Home Residents (Mar. 20, 2020)

  • Health Advisory: Respiratory Illness in Nursing Homes and Adult Care Facilities in Areas
    of Sustained Community Transmission of COVID-19
    (Mar. 21, 2020)

  • Nursing Home Guidance Letter (March 11, 2020)

10. Web resources - compilations of policies - Medicaid, Medicare, etc.

This article written by Evelyn Frank Legal Resources Program, NYLAG  eflrp@nylag.org  Check back for updates 

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