Impact of COVID-19 on visitation in Oklahoma hospitals and senior living facilities

Attorney Q&A with Hayley Blair Myers

The COVID-19 pandemic has, by necessity, caused severe restrictions on patient visitation in hospitals and senior living facilities. These crucial restrictions to protect public health create tension with patient visitation rights. In this LINC Q&A video, McAfee & Taft healthcare lawyer Hayley Blair Myers discusses how facilities are managing visitation policies and public safety protocols in the midst of this pandemic as well as the guidelines by the Centers for Disease Control and Prevention (CDC) and Oklahoma agencies related to visitation in hospitals and senior living facilities.


Q: What are patient visitation rights and how should facilities protect a patient’s visitation rights?

A: So let’s start with visitation rights in general. Federal law provides certain rights to hospital patients and in order for a hospital to participate in Medicare, it must protect each patient’s rights. Now these rights include the patient’s right to participate in the development of his or her plan of care, the right to make informed decisions, the right to personal privacy, to be free from abuse, and to visitation.

The Centers for Medicare and Medicaid Services, or CMS, the agency that administers Medicare, recognizes the important role that visitation plays in the care and treatment of hospital patients. If a hospital were to unnecessarily restrict visitation, then it may miss an opportunity to gain valuable information about the patient from those who know the patient best. Visitors can act as intermediaries for the patient by informing hospital staff of the patient’s needs. Visitors also play a support role for patients, particularly those who are vulnerable due to age, capacity or condition.

Because CMS recognizes that visitors play such an important role, they require hospitals to have policies and procedures regarding patient visitation rights. And if a hospital’s policy provides for any clinically necessary or reasonable restrictions, then that policy must include the reason for such restrictions or limitations.

In addition to having policies and procedures, CMS requires hospitals to provide the patient with notice of his or her visitation rights and any limitations or restrictions on such rights. And the notice must include the patient’s right to consent, to receive visitors, the patient’s right to receive such visitors and the patient’s right to deny or later withdraw consent to receive visitors. And a hospital cannot use the race, color, national origin, religion, sex, gender identity, sexual orientation, or disability of either the patient or the visitor as a basis for withholding visitation privileges. A hospital must ensure that all visitors enjoy full and equal visitation privileges subject to the patient’s preference.

Q: How has COVID-19 impacted patient visitation?

A: Here in Oklahoma, we have seen restrictions to patient visitation rights in hospitals and in nursing facilities in response to COVID-19. Our governor through executive orders, prohibited visitors to nursing homes, retirement homes, and longterm care facilities. Although the executive orders did not specifically mention hospital visitors. The governor said then through executive orders created an exception for visitors for end-of-life situations in nursing homes, retirement homes, and longterm care facilities. And as of June 15th visitation in nursing homes, retirement homes, in longterm care facilities can resume subject to guidance issued by the Oklahoma State Department of Health.

Now the Oklahoma State Department of Health has issued guidance on the phased reopening of longterm care facilities. And a facilities status within the phases of reopening depends on the absence of COVID-19 in a facility for more than 14 days. And it also depends on the color coded risk level assigned to the county that the facility is located in, in the COVID-19 Alert System, which is a four-tiered risk management tool with corresponding color categories that informs counties of their particular risk.

The guidance from the Oklahoma State Department of Health includes guidance on visitation in each phase of reopening of longterm care facilities. As an example, if a facility is in phase one, visitation should generally be prohibited. In phase two visitation may be allowed in limited and controlled situations. In phase three, all residents should have the ability to have limited visitation with the exception of those residents and quarantine for exposure to COVID-19.

Now the governor’s Open Up and Recover Safely plan, or OURS plan, also restricted visitation in hospitals and in senior care facilities. The OURS plan is a three-phased approach to opening back up Oklahoma’s economy. In phase one, visitation to hospitals and senior care facilities was prohibited. In phase two, visitation in senior care facilities was prohibited, but visitation in hospitals was permitted subject to limitation.

As of June first, Oklahoma is in phase three of the OURS plan. And phase three provides that visitation to senior care facilities is prohibited until the task force completes cleaning and testing protocols throughout the state. And then for hospitals, visitation is permitted subject to limitations, and these limitations are, each patient may have one adult patient representative, additional representatives may be added in exceptional circumstances, and then facilities can further limit visitation privileges if the patient representatives are not following the facility’s policies. And then the third limitation is that social distancing must be maintained at all times.

Q: What are the current CDC guidelines on visitation?

A: The CDC currently recommends that healthcare facilities should continue to limit visitation. And the CDC strongly discourages individuals from visiting patients who are at an increased risk for developing severe illness from COVID-19.

If visitation is permitted, then the CDC recommends that facilities should designate a specific entrance for individuals to utilize to access the facility.

The CDC also recommends that facilities should instruct individuals and visitors who are experiencing signs and symptoms of COVID-19 — where they have a fever or they show signs of acute respiratory illness — the facilities should instruct those individuals to leave the facility and to seek treatment.

The CDC also recommends that facilities should inform visitors of the signs and symptoms of COVID-19 and to not enter the facility if they have such signs and symptoms through visual alerts, like signs or posters.

Facilities should also provide alternatives for direct interaction between visitors and patients, including helping facilitate video and audio calls.

Finally, facilities should have staff members that are available to train and educate visitors. Individuals allowed to visit patients should be educated on the signs and symptoms of COVID-19, proper hand hygiene and proper respiratory hygiene and cough etiquette.

The CDC further recommends that healthcare facilities should develop thresholds for when active screening will be utilized. And if a facility is utilizing active screening, then individuals should not enter the facility until they are screened. And if an individual has symptoms of acute respiratory illness, consistent with COVID-19, they should not be permitted to enter the facility.

Q: How are hospitals and nursing facilities managing under the new requirements for visitation?

A: So we understand that hospitals are still restricting visitors except for the one patient representative. Hospitals are also spacing out the chairs in their waiting rooms in order to promote social distancing. And after an individual leaves the chair they’re coming back and then cleaning the chair for the next individual to sit.

Hospitals are requiring everyone to wear a mask and an individual does not have a mask they’re providing mask to those individuals. And hospitals have also designated an entrance for the public to access the facility and they’re screening all individuals who come through those entrances. And we understand that a potential visitors and visitors have been receptive of these changes to the hospital’s visitation policies.

With nursing facilities, nursing facilities are restricting visitors except for end of life situations. And we understand that nursing facilities are continuing to monitor and abide by guidance issued by the Oklahoma State Department of Health and they’re continuing to adapt their visitation policies as they move through the different phases of reopening in that guidance from the Oklahoma State Department of Health. And we understand that a potential visitors to nursing facilities were receptive to the restrictions to visitation policies, but as time has gone on, there’s been a little bit more pushback.

This Attorney Q&A has been provided for information of clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and it is not intended to create a lawyer-client relationship. Readers should not act upon the information in this Q&A without seeking professional counsel.

August 13, 2020

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