Two families sued for the right to visit relatives in hospice care during New Mexico’s pandemic-related restrictions of visitors in nursing homes. The judge presiding over the case ruled an order authorizing nursing homes to create their own criteria for banning visitors was unconstitutional. The State court ordered the secretary of the New Mexico Department of Health to strike the provision from the public health order and to revisit the order’s language, with consideration for the constitutional rights of nursing home residents and their families.
One of the families involved in this suit had filed a complaint against New Mexico’s Department of Health in early September, seeking a preliminary and permanent injunction. His argument was that the health order that was issued in March directing nursing facilities to limit visitations with patients receiving “end of life care” and authorizing them to create criteria for restrictions was arbitrary, capacious, and unconstitutional. Furthermore, the family member argued that the order was vague about the definition of end-of-life care and discriminated against patients and family members by barring them from visits, while placing no restrictions on staff members. The family member lost his standing in the case when his mother died on September 12, 2020, shortly after he had filed the complaint.
This family member filed an amended complaint on behalf of another family at the same nursing facility with whom he had been acquainted when he was able to visit his mother in the nursing facility. This family also was denied regular visits with their loved one in the nursing facility and stated that their loved one’s condition has deteriorated since the visitation restrictions went into effect.
The judge presiding over this case also ruled that the family members are suffering by being denied their right to association, which outweighs any burden on the Secretary to make sure that the Constitution is taken into account when executive orders are issued. Furthermore, the judge granted a request for a preliminary injunction and directed the health Secretary to provide a report within 21 days detailing changes to address the portion of the order identified as unconstitutional. It is still unclear at this time when the family members will be permitted to visit their love one who is still living in the nursing facility.
Issue:
The pandemic has brought many new restrictions on visitations in nursing facilities. The health and safety of residents is always at the forefront of these restrictions. It is important to follow federal and state requirements for visitation restrictions, but also it is imperative that the residents are allowed safe visitations from their loved ones during this pandemic, which can prevent social isolation.
Discussion
- Review policies and procedures addressing visitation. Ensure that the policies and procedures are current with the most recent visitation requirements from the Centers for Medicare & Medicaid Services (CMS) and specific state requirements. Revise policies as appropriate.
- Educate all residents, family members, and staff on the facility’s visitation policy. Communication should occur to all families, using as many modes as needed to reach all families (i.e., emails, mailings, telephone calls, etc.).
- Periodically audit to ensure that the visitation policy is being followed by all family members, and that staff are compliant with the guidelines of the visitation policy.
