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Medicare Steps Up Enforcement of Visitation and Representation Rights for Gay Partners in Hospitals

Medicare has stepped up enforcement of rules finalized last year regarding visitation and representation rights for same-sex partners in hospitals.

Medicare From the Department of Health and Human Services (HHS):

Today, the Department of Health and Human Services (HHS) announced 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.

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 today 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.

Sebelius According to HHS, a letter was sent to State Survey Agencies, which conduct on-site inspections of hospitals on behalf of CMS, directing them to be aware of the guidance.

Said HHS Secretary Kathleen Sebelius: "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.”


Medicare Finalizes Rules Requiring Equal Visitation Rights for All Hospital Patients Including Gay Partners

The Centers for Medicare & Medicaid Services (CMS) today issued new rules for Medicare- and Medicaid-participating hospitals stemming from a memo issued by President Obama this spring. Read the memo HERE.

According to a release from the Department of Health and Human Services:

Sebelius The new rules follow from an April 15, 2010 Presidential Memorandum, in which President Obama tasked HHS with developing standards for Medicare- and Medicaid-participating hospitals (including critical access hospitals) that would require them to respect the right of all patients to choose who may visit them when they are an inpatient of a hospital.  The President’s memorandum instructed HHS to develop rules that would prohibit hospitals from denying visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.  It also directed that the rules take into account the need for a hospital to restrict visitation in medically appropriate circumstances.

The rules require hospitals to have written policies and procedures detailing patients’ visitation rights, as well as the circumstances under which the hospitals may restrict patient access to visitors based on reasonable clinical needs.

A key provision of the rules specifies that all visitors chosen by the patient (or his or her representative) must be able to enjoy “full and equal” visitation privileges consistent with the wishes of the patient (or his or her representative). 

The rules update 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 are applicable to all patients of those hospitals regardless of payer source.

Among other things, the rules impose new requirements on 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 other type of visitor, as well as their right to withdraw such consent to visitation at any time. 

Said HHS Secretary Kathleen Sebelius (pictured):

“Basic human rights—such as your ability to choose your own support system in a time of need—must not be checked at the door of America’s hospitals. Today’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 reason.”


Towleroad Guide to the Tube #767: It Gets Better Edition

Secretary of Health and Human Services Kathleen Sebelius, gay seniors, Facebook employees, and Men Alive, the Orange County Gay Men's Chorus, are among the latest to lend their voices to the "It Gets Better" project.

For recent Guides to the Tube, click HERE.


HHS Letter Urges Hospitals to Institute Same-Sex Rights in Advance of Formal Rule

HHS Secretary Kathleen Sebelius yesterday sent a letter to leaders of major hospital associations in advance of a proposed rule in the Federal Register based on Obama's April 15 memorandum directing hospitals to grant same-sex partners visitation rights and medical power of attorney. 

The letter urges hospitals to not wait for the formalities of the rulemaking process to conclude before instituting changes at their own facilities.

The text of the letter follows: Sebelius  

Dear Colleagues:

On April 15, 2010, the President issued a Presidential memorandum to the U.S. Department of Health and Human Services (HHS) calling for the initiation of rulemaking that would ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors, regardless of whether the visitors are legally related to the patients. The President’s directive clearly instructed HHS to propose that a participating hospital not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. It also directed that the rulemaking take into account the need for a participating hospital to restrict visitation in medically appropriate circumstances.

I have tasked the Centers for Medicare & Medicaid Services (CMS) to satisfy the President’s directive through new requirements that will be included in the Medicare Hospital and Critical Access Hospital Conditions of Participation, 42 C.F.R. Parts 482 and 485 subpart F, respectively. CMS intends to publish a proposed rule shortly and a final rule by late fall of this year.

Your organizations play a crucial role in advancing quality care and patient safety in hospitals across the nation. I recognize that many of your members have been at the forefront of advancing patient-centered hospital visitation policies in their respective institutions or have worked with their state legislatures to develop state laws that promote such policies. I welcome your input into this rulemaking process once the notice of proposed rulemaking (NPRM) is published.

Furthermore, in the interim, until such time as a final rule can be published, I would appreciate your voluntary support for the intent of the Presidential memorandum by encouraging your members to review policies they may currently have in place and adopt and enforce patient-centered visitation policies, as contemplated by the President, to the extent that they have not done so already. Your actions could spare many patients the pain of being separated from a loved one during an admission to a hospital – often one of the most anxious times in their lives.

I know the President and I can count on you now to ensure that this patient right – and all others – are recognized and honored.

A copy of the Presidential memorandum is enclosed. Thank you for your dedication to the cause of greater patient involvement in health care decisions.

Sincerely,

Kathleen Sebelius


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