On September 7, 2011, the U.S. Department of Health and Human Services (HHS) issued interpretive guidance regarding the November 17, 2010 Centers for Medicare and Medicaid Services (CMS) regulation (the Rule) providing a hospitalized patient with the right to choose his or her visitors and to designate a person of choice to make medical decisions on his or her behalf should the patient become incapacitated.

The Rule followed an April 15, 2010 Presidential Memorandum, in which President Obama directed HHS to develop new standards regarding patient visitation rights and the right to designate surrogate decision makers regarding the patient’s medical care.  The President stated that denying patients access to their chosen visitors or decision-maker of choice can prevent doctors and nurses from having the best information about a patient’s medications or medical history.  HHS Secretary Kathleen Sebelius stated in a press release on September 8, 2011, that HHS is “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 them make medical decisions on their behalf.”

Along with the HHS guidance, CMS issued a memorandum to all State Survey Agency Directors detailing the requirements of the Rule.  State Survey Agency Directors are responsible for on-site inspections of hospitals on behalf of CMS.

Regarding visitation rights, the Rule provides that all Medicare and Medicaid participating hospitals, including critical access hospitals, must: (1) maintain written policies and procedures regarding patient visitation rights, including any “clinically necessary or reasonable restriction or limitation” that may be necessary, and the reasons for any such limitation; (2) inform all patients (or their designated representative) of their right to receive visitors of their choice, including a spouse, a domestic partner (including same-sex domestic partners), another family member, or a friend; (3) inform patients of their right to withdraw or deny consent at any time regarding authorized visitors; (4) not restrict visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability; and (5) ensure that all visitors have “full and equal” visitation rights that are consistent with the patient’s preference.

The Rule further provides patients with the right to delegate to another person the ability to make medical decisions on his or her behalf as permitted under State law.  According to the interpretive guidance, CMS expects hospitals to take reasonable steps to determine patients’ wishes concerning the designation of a representative, and to give deference to patients’ wishes concerning their designated representatives, whether expressed orally, in writing, or by other evidence.

In addition to the visitation and designated representative requirements, the Rule codifies a number of other patient rights addressed in the directive, including the right to participate in the plan of care, to formulate advance directives, and to receive notice of the patient’s rights under the Rule when possible before providing or discontinuing care.  As a condition of participation in the Medicare and Medicaid programs, hospitals must implement the Rule for all patients, not just those covered by Medicare or Medicaid.

The new Rule may be accessed by clicking here. The September 7, 2011 interpretive guidance is available here.  CMS’s memorandum to State Survey Agency Directors is available here