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Medicare steps up enforcement of equal visitation and representation rights in hospitals

September 14, 2011

Online Staff Report

The Department of Health and Human Services (HHS) announced Sept. 7 new guidance to support enforcement of rules that protect hospital patients’ right to choose their own visitors during a hospital stay, including a visitor who is a same-sex domestic partner.

These rules, finalized by the Centers for Medicare & Medicaid Services (CMS) in November, apply to all hospitals that participate in Medicare and Medicaid.

The 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 should they become incapacitated.

HHS Secretary Kathleen 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.”

The rules updated the Conditions of Participation (CoPs), which are the health and safety standards all Medicare- and Medicaid-participating hospitals and critical access hospitals must meet, and apply to all patients of those hospitals, even if they are not on Medicare or Medicaid.

Among other things, the CoPs require hospitals to explain to all patients their right to choose who may visit them during their inpatient stay, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or another type of visitor, as well as their right to withdraw such consent to visitation at any time.

Existing CoPs also protect the rights of hospital patients to have representatives who can act on their behalf. HHS has updated the guidance for these rules to emphasize that hospitals should give deference to patients’ wishes concerning their representatives, whether expressed in writing, orally, or through other evidence, unless prohibited by state law.

The guidance issued is intended to make it easier for family members, including a same-sex domestic partner, to make informed care decisions for loved ones who have become incapacitated.

CMS sent a letter to State Survey Agencies, which conduct on-site inspections of hospitals on behalf of CMS. The letter highlights the equal visitation and representation rights requirements and directs SSAs to be aware of the guidance when evaluating hospitals’ compliance with CoPs.

This announcement is another step toward equal rights for all Americans, and it is another step toward putting the patient at the center of our health care system,” said CMS Administrator Donald M. Berwick, M.D. “All patients should be afforded the same rights and privileges when they enter our health care system, and that includes the same opportunity to see their significant other.”

In other news of interest to the lesbian, gay, bisexual and transgender (LGBT) community, the Health Resources and Services Administration (HRSA), another agency of the Department of Health and Human Services, announced a $248,000 grant to the Fenway Institute to create a National Training and Technical Assistance Center to help community health centers improve the health of LGBT populations.

For more about the CMS rules issued in November, visit http://www.hhs.gov/news/press/2010pres/11/20101117a.html.

For the letter sent to State Survey Agencies, visit http://www.cms.gov/SurveyCertificationGenInfo/PMSR/list.asp#TopOfPage.

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