On November 17, 2010, the Centers for Medicare & Medicaid Services (CMS) finalized a new rule providing hospital patients the right to choose their visitors during an inpatient stay. The Rule provides that all Medicare and Medicaid participating hospitals, including critical access hospitals, must: (1) by mid-January 2011, 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 support person) 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 and also of their right to withdraw or deny consent at any time; (3) not restrict visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability; and (4) ensure that all visitors have “full and equal” visitation rights that are consistent with the patient’s preference. HHS Secretary Sebelius, stated in a news release that “[t]oday’s rules help give ‘full and equal’ rights to all of us to choose whom we want by our bedside when we are sick, and override any objection by a hospital or staffer who may disagree with us for any non-clinical reasons.”

The Rule follows an April 15, 2010 Presidential Memorandum, in which President Obama stated that denying patients access to their chosen visitors can prevent doctors and nurses from having the best information about a patient’s medications or medical history. According to the Presidential Memorandum, “[i]t means that a stressful and at times terrifying experience for patients is senselessly compounded by indignity and unfairness. And it means that all too often, people are made to suffer or even to pass away alone, denied the comfort of companionship in their final moments while a loved one is left worrying and pacing down the hall.” The White House thereafter directed HHS to develop new standards for Medicare and Medicaid participating hospitals regarding patient visitation rights.

CMS published a proposed rule in the Federal Register on May 26, 2010, and thereafter received from health care facilities, law firms, advocacy organizations and individuals approximately 7,600 comments that—with very few exceptions—expressed strong support for the proposed regulation. The Rule is scheduled to take effect 60 days after its publication in the Federal Register on November 19, 2010. The new Rule is available by clicking here.