The Centers for Medicare & Medicaid Services (CMS) has issued the final rules prohibiting Medicare- and Medicaid-participating hospitals and critical access hospitals (CAH) from denying visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability, and protecting patients’ right to choose the visitors they want, including same-sex domestic partners. The rules update the Conditions of Participation (CoPs), which are the standards hospitals must meet to participate in Medicare and Medicaid, but they are applicable to all patients of those hospitals regardless of payer source.

The final rules are similar, though not identical, to the proposed rules published by the CMS at the end of June 2010. In addition to the prohibitions described above, the final rules require hospitals to:

• Have written policies and procedures regarding patients’ visitation rights and the circumstances in which a hospital may place clinically necessary or reasonable restrictions or limitations on visitor access to patients.
• Inform each patient, or their support person, of his or her visitation rights, including any clinical restriction or limitation on visitation.
• Inform each patient of their right to choose who may visit them, regardless of whether the visitor is a spouse or other family member, a friend, a domestic partner (including a same-sex domestic partner), or other type of visitor, and the patient’s right to withdraw their consent or deny visitation to such people at any time.
• Ensure that all visitors enjoy full and equal visitation privileges consistent with patient privileges.

In discussing circumstances when restrictions or limitations on visitation would be clinically appropriate and reasonable, the rules give the following overall example: “When visitation would interfere with the care of the patient and/or the care of other patients.” In general, the rules state, “[w]hether the reason for limiting or restricting visitation is infection control, disruptive behavior of visitors, or patient or roommate need for rest or privacy, all of these reasons may be considered as clinically reasonable and necessary when viewed in light of a hospital’s or CAH’s overarching goal of advancing the care, safety, and well-being of all of its patients.” Thus, the rules state, hospitals have “a degree of flexibility when developing and imposing policies that may limit or restrict visitation,” but the rules also caution that “the burden of proof is upon the hospital or CAH to demonstrate that the visitation restriction is necessary to provide safe care.”

As to the specificity required in policies describing the limitations or restrictions on patient visitation, the rules state: “[W]e do not believe that a hospital or CAH must delineate each of the clinical reasons that may warrant imposition of this policy because it may be impossible to anticipate every instance that may give rise to such a situation.” The rules provide, however, that “in situations where it may be necessary for patient visitation to be limited or restricted, hospitals and CAHs have a duty to the patient to clearly explain the reasons for such restrictions or limitations.”

Because of the ambiguity and nuances in these aspects of the rules, and the burden of proof on hospitals to establish the necessity of visitation restrictions, training for hospital employees –  particularly those involved in direct patient care – will be important in avoiding the potential legal potholes.

This entry was written by George O’Brien.

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