According to federal regulations, residents in a skilled nursing facility (SNF) have an almost unfettered right to have visitors at any time. Specifically, the facility must provide immediate access to family members or other visitors of the resident "subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time." 42 C.F.R. § 483.10(j). The devil is in the details and what a facility considers a "reasonable restriction" may not be viewed as such by the Centers for Medicare & Medicaid Services (CMS).
What options exist for a facility when a resident's visitor is acting in a disruptive manner? The answer is not as simple as it may seem. In one case, currently under appeal, a facility restricted the visits of a resident's adult daughter after the daughter attempted to kidnap her mother from the facility. That resident was documented by the attending physician, consulting psychiatrist and several independent expert physicians as being incapacitated. Another daughter, who held a valid power of attorney (POA), approved the restriction on her sister. The facility also restricted the visits of an attorney who attempted to have the incapacitated resident revoke the valid POA held by the daughter.
When the State survey agency received a complaint from the lawyer who had been restricted, it sent a team of surveyors to the facility. The surveyors cited "immediate jeopardy" based on what it considered an improper restriction of visitors—the restriction of the daughter who attempted to kidnap the resident and the attorney who tried to get the incapacitated resident to revoke her POA. CMS imposed a substantial civil money penalty.
Most people would agree that it was reasonable to restrict the visits of someone who attempted to kidnap a resident. An attempted kidnapping constitutes abuse by even the most liberal definition of abuse. However, in this instance, CMS did not agree. (On appeal, an administrative law judge agreed with CMS and the case is on further appeal. In a future article, we'll discuss how the appellate panel addressed this case.)
In another case, a facility "prematurely" terminated the restriction on an abusive husband's visitation, and the Departmental Appeals Board upheld a finding of immediate jeopardy. In Columbus Nursing & Rehabilitation Center (Columbus), DAB No. 2247 (2009), the Board held that a facility "failed to protect the resident" when it ended the restrictions on visitation by an abusive husband. The Board has repeatedly held that "protecting and promoting a resident's right to be free from abuse necessarily obligates the facility take reasonable steps to prevent abusive acts, regardless of their source" (Pinehurst Healthcare & Rehab. Ctr. DAB No. 2246, (2009)). Such reasonable steps to protect a resident sometimes entail restricting visits by a disruptive individual.
Mark Yost, COO and General Counsel, NMS Healthcare, says, "For facilities, our first priority is protecting our residents. Sometimes, regulators do not fully appreciate the inherent difficulty and competing interests involved with respecting resident rights while protecting their safety." But, Yost adds, "The provider community must always protect residents from disruptive visitors, even if that means having a judge subsequently determine if a facility's actions were appropriate."