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July 9, 2010

CMS Proposes Rule to Revise Medicare Conditions of Participation to Ensure Visitation Rights for All Hospital Patients - A Response to a Presidential Memorandum

Executive Summary

On April 15, 2010, President Obama issued a Presidential Memorandum on Hospital Visitation ("Memorandum") to the Secretary of Health and Human Services ("Secretary"). In his Memorandum, the President discussed the plight of hospitalized individuals who are denied the comfort and health and safety benefits of visitation by a loved one because a loved one does not fit the traditional concept of "family." The President requested that the Secretary initiate proposed rulemaking addressing the right of hospital and critical access hospital ("CAH") patients to designate who may visit them. The Memorandum may be found here.

In response to the Memorandum, on June 28, 2010, CMS published a proposed rule to revise the Medicare Conditions of Participation for hospitals and CAHs to ensure the visitation rights of all patients ("Proposed Rule"). The Proposed Rule provides as follows:

  • Hospitals must have written policies and procedures addressing the visitation rights of patients and must notify patients (or their representatives, where appropriate) of their rights. Policies and procedures must reference any "clinically necessary or reasonable restriction or limitation" on the visitation rights and the reason for such restrictions (e.g., patient is undergoing care interventions, existence of infection control issues, visitation may interfere with care of other patients);
  • Patients (or their representatives, where appropriate) may designate who may and may not visit the patient including, but not limited to, a spouse, a domestic partner (including a same-sex partner), another family member or a friend - patients have the right to withdraw or deny consent to visitation at any time;
  • A hospital must not restrict, limit or otherwise deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability; and
  • A hospital must ensure that all visitors designated by the patient (or representative) enjoy visitation privileges that are no more restrictive than those that immediate family members would enjoy.

The affected CoPs are: 42 C.F.R. §§482.13 and 485.635.

In commentary, CMS notes that the rule would need to be "flexible enough" to permit hospitals and CAHs "in rare cases" to require written documentation of patient representation (e.g., a power of attorney or formal health care proxy) insofar as a patient representative would assume the patient's right to designate visitors in the event of incapacity. While CMS acknowledges that requiring written documentation of patient representation would not be permissible if, at a minimum, the patient has the capacity to communicate, or where patient representation automatically follows from a legal relationship established under State law (e.g., marriage, parent-child relationship), CMS invites public comment addressing those rare cases when a hospital may require written documentation of patient representation.

CMS also is soliciting comments on the following issues:

  • Visitation rights of patients and residents receiving care from hospice, nursing homes and other Medicare/Medicaid providers and suppliers;
  • The style and form that patient notices and disclosures would need to follow to ensure patients are adequately informed of their visitation rights; and
  • Whether the requirement set forth at 42 C.F.R. §482.13(b)(2) (ensuring the patient's right to designate a representative) effectively addresses any "inappropriate barriers to a patient's ability to designate a representative."

Comments on the Proposed Rule are due to CMS no later than 5 p.m. on August 27, 2010 and may be submitted electronically (http://www.regulations.gov), by regular mail, by express or overnight mail, or by hand delivery or courier. Commenters must reference file code CMS-3228-P. (See Proposed Rule here for details on comment submission requirements.)

Analysis and Recommendations

If adopted as is, the benefits of the Proposed Rule include protection of a patient's ability to designate who may visit, broadening patient participation in the care received, and, potentially, significant improvements in health outcomes as a patient's chosen visitors often have valuable information on the patient's medical history, condition, medications and allergies. Under the Proposed Rule, hospitals and CAHs will be required to craft policies and procedures addressing patient visitation rights and, also, produce a patient notice detailing patient visitation rights, to be provided on admission. Hospitals and CAHs may want to inventory their applicable policies, procedures and notices in anticipation of the final rule.

As noted above, the Proposed Rule states that policies and procedures must reference any clinically necessary or reasonable restriction or limitation on visitation rights. As hospital personnel well know, there are legitimate non-clinical reasons for limiting visitation such as the presence of a disruptive or combative visitor or an excessive number of visitors. While the Proposed Rule is well-intentioned, it may not go far enough in providing for justifiable non-clinical reasons to limit visitation and hospitals may wish to submit comments in this regard.

Finally, we note that the Proposed Rule guaranteeing the patient's right to be visited by those he/she designates is consistent with and, in fact, harmonizes with the provisions of the Health Insurance Portability and Accountability Act of 1996 Privacy Rule permitting hospitals and other covered entities, in many circumstances, to disclose to a family member, friend or other person identified by the patient ("Significant Other"), protected health information directly relevant to the Significant Other's involvement with the patient's care.1

If you have any questions, or need assistance preparing policies and patient notification documents, please do not hesitate to contact Adele Merenstein at 317-752-4427 or via e-mail at amerenst@hallrender.com or your regular Hall Render attorney. Special thanks to William A. Metcalf, law clerk, for his contribution to this article.


1 See 45 C.F.R. §464.510(b) and www.hhs.gov for further details.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

 
 
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