On April 14, 2010, President Barack Obama issued a memorandum to the Secretary of Health and Human Services ("Secretary") directing the initiation of rulemaking to ensure that hospitals respect the right of patients to have and designate visitors.  The memorandum also directed the Secretary to issue guidance that clarifies existing regulatory requirements at 42 CFR § 489.13, governing the right of a patient's representative to make informed decisions concerning the patient's care, and 42 CFR § 489.102(a), concerning advance directives, such as durable powers of attorney and health care proxies.  The President stated in the memorandum that his intent was to ban hospitals from denying visitation on the basis of "race, color, national origin, sex, sexual orientation, gender identity, or disability."

In response, the Centers for Medicare and Medicaid Services ("CMS") issued final rules on November 19, 2010 that amended the Conditions of Participation for Medicare-participating hospitals at 42 CFR § 482.13, requiring hospitals to, among other things: (i) create written policies and procedures regarding the visitation rights of patients; (ii) inform patients and their "support person"1 of their visitation rights; (iii) inform patients of their right to receive designated visitors (including a spouse, same-sex domestic partner, family member, or friend); (iv) allow patients or their designated representative to have the right to participate in the development and implementation of their plan of care; (iv) recognize patient's advance directive, which may include delegation of the right to make decisions about the patient's care to a representative, as well as designation of a support person, and inform the patient regarding the hospital's advance directive policy; (v) notify a family member or designated representative of the patient's admission to the hospital; and (vi) and ensure all visitors enjoy full and equal visitation privileges consistent with patient preferences.

Notably, these patients' rights are subject to clinical restrictions or limitations on such rights, and the rights do not provide for an individual cause of action for a patient or fines or jail time for failing to comply with the rules.  Rather, the enforcement mechanism for noncompliance is a threat to be terminated from the Medicare program.2  Furthermore, the federal rules defer to state law governing advance directives.3

Additionally, CMS recently issued a memorandum to State Survey Agency Directors on September 7, 2011 further clarifying hospital patients' rights to delegate decision to representatives and have visitors.  In the memorandum, CMS stated its expectation that hospitals "give deference to patients' wishes concerning their representatives, whether express in writing, orally, or through other evidence."  Accordingly, CMS revised the relevant portions of the State Operations Manual Appendix A to clarify its expectations regarding hospitals' recognition of patients' rights and Appendix W to clarify advance directives requirements.

Consequently, hospital administrators should ensure that compliant written policies regarding visitation and advance directors are in place and familiarize themselves with CMS' expectations on these issues by referring to recently revised State Operations Manual which is available online.

This article was originally published in the October 2011 issue of Atlanta Hospital News.

Footnotes

1. "Support person" is defined as "the family member, friend, or other individual who supports the patient during his or her hospital or CAH stay and may exercise the patient's visitation rights on his or her behalf."  75 Fed. Reg. 70,831 to 70,838 (Nov. 19, 2010).  The support person may be established by the patient's oral designation or, if the patient is incapacitated and two or more people claim to be the support person, by documentation that would "most clearly be justified."  75 Fed. Reg. 70,381, 70,836-37.

2. 75 Fed. Reg. 70,381 to 70,833.

3. 75 Fed. Reg. 70,381 to 70,836.

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