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Final rule pushes for equal hospital visitation and ­representation rights

Final rule pushes for equal hospital visitation and ­representation rights

After reading this article, you will be able to:

  • Discuss the initial comments made by the Obama administration on hospital visitation
  • Identify steps the president's memorandum gave to CMS with regard to hospital visitation rights
  • Describe the components of the CMS final rule addressing the issue of visitation
  • Describe the policy and procedure requirements hospitals must now have with regard to visitation rights
  • Discuss The Joint Commission's actions following the CMS final rule to bring the agency's requirements in line with CMS'

Editor's note: Renee H. Martin, JD, RN, MSN, is a member of Tsoules, Sweeney, Martin & Orr, LLC, where she exclusively practices healthcare law.

On April 15, 2010, President Obama issued a moving presidential memorandum on hospital visitation and patient representation that began:

There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean-a loved one to be there for us, as we would be there for them.

Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides-whether in a sudden medical emergency or a prolonged hospital stay. Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives-unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated …

[This means that] all too often, people are made to suffer or even to pass away alone, denied the comfort of companionship in their final moments while a loved one is left worrying and pacing down the hall.


To avoid these types of situations, the presidential memorandum directed CMS to develop rules that require hospitals participating in Medicare and Medicaid, including critical access hospitals (CAH), to respect the right of all patients to designate who may visit them during a hospital stay. Specifically, the rules should prohibit hospitals from denying visitation privileges on the basis of familial relationship, race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.

While the president recognized that there may be situations that warrant visitation restrictions (i.e., medically appropriate circumstances), he emphasized that visitation restrictions imposed on nonfamily members should not be any more restrictive than those imposed on family members.

The president also directed CMS to ensure that hospitals are in full compliance with regulations regarding patients' advance directives, such as durable powers of attorney and healthcare proxies.

In response to the presidential memorandum, on November 19, 2010, CMS published a final rule for Medicare- and Medicaid-participating hospitals that protects patients' right to choose their own visitors when they are in the hospital, specifically including a visitor who is a same-sex domestic partner. CMS considered over 7,000 comments from individuals, patient advocates, the hospital community, and other healthcare facilities before it issued the final rule.

The final rule revises the Medicare Conditions of Participation (CoP) (i.e., the health and safety standards all Medicare- and Medicaid-participating hospitals and CAHs must meet, and which apply to all patients regardless of payer source) for hospitals and CAHs to provide for visitation and representation rights. Codified at 42 CFR § 482.13(h) for hospitals and 42 CFR § 485.635 for CAHs, the final rule took effect on January 18, 2011.

In announcing the final rule, U.S. Department of Health and Human Services Secretary Kathleen Sebelius said, "Basic human rights-such as your ability to choose your own support system in a time of need-must not be checked at the door of America's hospitals. Today's rules help give ‘full and equal' rights to all of us to choose whom we want by our bedside when we are sick, and override any objection by a hospital or staffer who may disagree with us for any non-clinical reason."

The final rule mandates that the CoP for hospitals and CAHs be amended to include the following language regarding patient visitation rights:

"Hospitals and CAHs must have written policies and procedures regarding the visitation rights of patients, including those setting forth any clinically necessary or reasonable restriction or limitation that the hospital may need to place on such rights and the reasons for the clinical restriction or limitation."

Hospitals and CAHs must do all of the following:

  • Inform each patient (or support person, where appropriate) of his or her visitation rights, including any clinical restriction or limitation on such rights when (1) he or she is informed of his or her other rights as a hospital patient (hospitals); or (2) in advance of furnishing patient care whenever possible (CAHs)
  • Inform each patient (or support person, where appropriate) of the right, subject to his or her consent, to receive the visitors whom he or she designates, ­including but not limited to a spouse, a ­domestic partner (including a same-sex domestic partner), ­another family member, or a friend, and of his or her right to withdraw or deny such consent to visitation at any time
  • Not restrict, limit, or otherwise deny visitation ­privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability
  • Ensure that all visitors chosen by the patient (or his or her representative) enjoy full and equal visitation privileges consistent with the wishes of the patient (or his or her representative)


"These rules put non-clinical decisions about who can visit a patient out of the hands of those who deliver care and into the hands of those who receive it," said CMS Administrator Donald Berwick, MD, MPP. "While we still have miles to go in making care more patient-centered, these rules make it easier for hospitals to deliver on some of the fundamental tenets of patient-centered care-care that recognizes and respects the patient as an individual with unique needs, who [should be] treated with dignity and granted the power of informed choice."

After CMS updated its requirements under its CoP for patient visitation rights for both hospitals and CAHs to ensure equal rights for all patients, The Joint Commission updated its own requirements to mirror the CoP language so that the implications of complying with either standard are similar. New and revised elements of performance for evaluating the new standard for visitation went into effect January 1, 2011, but findings did not begin to affect accreditation until July.

On September 7, CMS announced new guidance to support enforcement of the final rule issued last November to further protect hospital patients' right to choose their own visitors during a hospital stay, including a same-sex domestic partner.

The CMS guidance also supports enforcement of the right of patients to designate the person of their choice, including a same-sex partner, to make medical decisions on their behalf if they become incapacitated. There are already CoPs that protect the rights of hospital patients to have representatives act on their behalf. In an effort to make it easier for family members, including same-sex domestic partners, to make informed care decisions for loved ones who have become incapacitated, CMS updated the guidance for these CoPs to emphasize that hospitals should defer to patients' wishes concerning their representatives, and that deference should be given regardless of how it is expressed (e.g., in writing, orally, or through other evidence), unless prohibited by state law.

Regarding the new CMS guidance, Secretary Sebelius said, "Couples take a vow to be with each other in sickness and in health and it is unacceptable that, in the past, some same-sex partners were denied the right to visit their loved ones in times of need. We are releasing guidance for enforcing new rules that give all patients, including those with same-sex partners, the right to choose who can visit them in the hospital as well as enhancing existing guidance regarding the right to choose who will help make medical decisions on their behalf."

This CMS guidance was set forth in a letter to state survey agencies (SSA), which conduct on-site inspections of hospitals on CMS' behalf. The letter highlights the mandated equal visitation and representation rights requirements, and directs the SSAs to consult the CMS guidance when evaluating hospitals' compliance with CoPs. This letter provides the enforcement tool that state survey and certification groups can use to ensure hospital compliance with CMS policy.

In response to this recent activity and to prepare for SSA inspections, hospitals should review written policies and procedures regarding both visitation and representa­tion rights of patients to ensure compliance with the changes to CoPs as well as the guidance criteria. If writteninformation is distributed to patients regarding their rights, it should be reviewed to ensure it includes the required information especially regarding same-sex domestic partners. Employment handbooks and training materials should also be reviewed and updated as needed.


Final thoughts and definitions

A few key points of consideration when looking at the final rule:

  • Clarification of support person. The final rule defines a "support person" broadly as "a family member, friend, or other individual who is there to support the patient during the course of the stay." The support person may be (but does not have to be) the same individual legally responsible for making medical decisions on behalf of the patient. The support person does not need to be designated in writing; however, a hospital or CAH may look to documentation (e.g., an advance directive) to determine who is a patient's support person if two or more individuals claim to be a patient's support person.
  • Acceptable restrictions on visitation. In the final rule, CMS discussed various examples of when imposition of restrictions or limitations on visitors may be warranted: when the patient is undergoing care interventions; when there may be infection control issues; when visitation may interfere with the care of other patients; existing court orders restricting contact of which the hospital or CAH is aware; disruptive, threatening, or violent behavior; patient need for rest or privacy; limitations on the number of visitors during a specific time period; and inpatient substance abuse treatment programs with protocols limiting visitation. CMS makes clear that this is not an exhaustive list and expressly refused to include a list in the final rule, stating that it "believes that, in the interests of patient safety, such decisions are best left to the healthcare professionals responsible for the care of the patient, and should not be dictated through overly prescriptive regulations."