By Karen Goldsmith
We all have histories, and the older we get, the longer the history. Thus, it is no surprise that many residents come to our centers with family history and issues among family members. Usually staff find themselves square in the middle of dealing with very volatile family dynamics.
We get many questions about who can visit and when. The new Interpretive Guidelines give us some assistance.
F 563 (42 CFR 483(f)(4) gives the resident the right to receive visitors of his or her choosing at times the resident chooses. There are two conditions to this right. The first is that the resident has the right to decline visiting with the individual. That makes sense. It is the resident’s right to have visitation, not the visitor’s right to impose himself on the resident.
The second is that the manner of the visitation must not impose on the rights of other residents. That means things such as disruptive behavior that may frighten others need not be tolerated. You can control the location of the visitation if it infringes on others. For example, if the son of a resident works the 3:00-11:00 p.m. shift and visits Mom at 11:30 p.m., you can require they meet somewhere other than the resident’s room to avoid disturbing her roommate. You must provide auditory and visual privacy, but it can be somewhere else in the building.
Relatives are given immediate access to the resident. This does not mean that if the resident is in the shower, the son can visit in the shower room. There is a modicum of sensibleness applied here. You should advise the resident that the son is there to visit and ask if she wants her shower cut short or wants to finish her shower as she normally would. This is an exercise of the resident’s right to the time of the visitation. You can have some control over the location. Since the shower room is a busy place and others need access to it, this is not normally an appropriate place for visitation. Of course, there are always potential exceptions, but we cannot address all of those in an article.
The resident defines his family, not bloodlines. The Guidelines suggest that the facility identify who the resident considers family on admission. If the resident cannot communicate, the resident representative should be consulted. Remember, however, that the power by which the resident representative must define the family is based on the power given to that person by the resident or, in some cases, a court of law.
Others with whom the resident wishes to visit are also given immediate access but subject to reasonable clinical and safety restrictions. You must have written policies and procedures regarding the resident’s right to visitation, including delineating the restrictions you place on visitation under this provision. You must include the restriction and when it is applied. And when you apply it – document it.
What are some of the issues that may lead to these restrictions? The Interpretive Guidelines help us here by supplying examples:
- Community associated infections or communicable diseases
- Resident’s risk factor for infection
- When a resident is at the end-of life, there must be some accommodation as appropriate
- Locking the facility at night but with a system for allowing visitors approved by the resident
- Limiting access to someone who is under investigation of abuse, neglect, exploitation or coercion or who has been found to have committed one of these acts. Limiting can be anything from denying visitation (careful with this – document) to limiting location or requiring supervision
- Denying access to someone who has been found to have been committing criminal acts
- Denying access to individuals who are inebriated or disruptive
The resident’s representative does not have the authority to control the resident’s visitors or the time those individuals visit unless the resident has specifically given them that right. This means if a resident has a proxy appointed by his health care provider, that proxy would not have the authority to preclude visitation. Why? Because the proxy statute states that a determination of a person’s incapacity to make medical decisions does not impact any other decisions that person may make. Secondly, the resident has not chosen the proxy (if he did, it would be his surrogate), so there is no delegation by the resident of the authority to control visitation. There are rare instances when who visits may be a medical decision, but these are few and far between. They should involve the interdisciplinary care team and must involve the treating physician.
You should carefully review the Guidelines for F 563 and F 564. They have changed substantially from the previous guidance and will help you solve many of the dilemmas your staff faces as to who can visit, when visitation can occur and who can control it.
This information is general and not considered legal advice nor does it pertain to any specific set of facts.
Karen Goldsmith of Goldsmith & Grout, PA serves as FHCA’s Regulatory Counsel. Her office is located at PO Box 875, Cape Canaveral, FL 32920. She is available to members by phone at (321) 613-2979 or e-mail at [email protected]
