Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On June 28, the Centers for Medicare & Medicaid Services (CMS) of the Department of Health and Human Services (HHS) published a Proposed Rule on Equal Visitation Rights (pdf) for patients in Medicare- and Medicaid-participating hospitals, including critical access hospitals. As a condition of participation in Medicare and Medicaid, the proposed rule would require hospitals to have and inform patients of written policies and procedures regarding visitation rights, and hospitals would be prohibited from restricting, limiting, or otherwise denying patient visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. Any clinically necessary or reasonable restrictions or limitations on visitation rights would be required to be stated in the written policies together with the reasons for the clinical restrictions or limitations, and hospitals would be required to ensure that all visitors designated by a patient “enjoy visitation privileges that are no more restrictive than those that immediate family members would enjoy.” More specifically, hospitals would be required to “inform each patient (or representative, 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 his or her right to withdraw or deny such consent at any time.”
In the preamble to the proposed rule, CMS recognized the need for sufficient flexibility in the rule’s application to permit hospitals to require “written documentation of patient representation by legally valid advance directives, such as durable powers of attorney and healthcare proxies (as opposed to verbal designation of the representative by the patient), but only in rare cases.” CMS specifically requested comment on how best to identify such “rare cases,” but suggested that, “at a minimum, a hospital...may not require documentation where the patient has the capacity to speak or otherwise communicate for himself or herself; where patient representation automatically follows from a legal relationship recognized under State law (for example, a marriage, a civil union, a domestic partnership, or a parent-child relationship); or where requiring documentation would discriminate on an impermissible basis.” The preamble also provided the following examples of situations in which it would be clinically necessary or reasonable to place restrictions or limitations on visitors: when a patient is undergoing care interventions, when there may be infection control issues, or when visitation may interfere with the care of other patients.
To be assured consideration, comments on the proposed rule must be received by CMS no later than 5:00 p.m. (EDT) on July 28, 2010. The proposed rule provides addresses and methods by which comments may be submitted.