HHS issues final hospital visitation reg

by on November 18, 2010  •  In Family law, Health

After considering thousands of comments on a proposed regulation requiring all hospitals that receive Medicare funds (which essentially = all hospitals in the U.S.) to develop visitation policies that allow patients to designate anyone, including same-sex partners, as visitors, the Department of Health and Human Services has issued the final regulation. It will take effect in 60 days.

Here is reporting from The Advocate, based on a conference call between Secretary Sebelius and HHS Deputy General Counsel (and former ACLU LGBT Rights Project attorney) Ken Choe with advocates:

The rule change is the result of a directive that President Barack Obama gave to HHS in April after hearing stories of people who were denied access to their same-sex partners during the critical and, in some cases, final hours of their lives.

Hospitals will be required to have written policies and procedures detailing visitation rights and the specific circumstances under which a hospital can restrict access based on reasonable clinical needs. Hospitals must also inform incoming patients of their right to choose their visitors, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or other type of visitor, as well as their right to withdraw such consent to visitation at any time.

Ken Choe, deputy general counsel at HHS, said no documentation will be required to prove any particular kind of relationship. Patients need only give an oral designation of whom they wish to permit access to, a designation that can also be revoked at any point during their stay.

If a patient enters the hospital unconscious, Choe said complications with access would only arise if two people claimed to be the person who should be making visitation decisions on the patient’s behalf. In that case, hospitals would be allowed to ask for documentation in order to determine who should be allowed access to the patient.

Choe said complaints can be lodged against hospitals believed to be out of compliance in several ways. All hospitals must have a formalized internal grievance process, and people can also report hospitals to their state’s Survey and Certification Process, which governs Medicare and Medicaid participation. Medicare beneficiaries can also take their concerns to Quality Improvement Organizations (QIOs) in every state.


One Response to HHS issues final hospital visitation reg

  1. Nancy Polikoff November 18, 2010 at 3:59 PM

    You don’t mention one of the most important aspects of this final rule. It makes clear that the “conscience clause” does not allow medical personnel to refuse to implement an advance directive naming a surrogate decisionmaker. So this means a doctor who objects to same-sex relationships can’t claim some “conscience clause” basis for not accepting a partner as the surrogate decisionmaker if there is an advance directive. Since the final rule repeatedly states that it is not addressing surrogate decisionmaking since it is governed by state law, I think it noteworthy that they did make this statement about the significance (or, more precisely, lack thereof) of the federal “conscience clause.” For this and other details about the final rule, check out my blog post.

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