On January 18 the Center for Medicare and Medicaid Services’ (CMS) final rule on eliminating discrimination in hospital visitation policies will go into effect. Following President Obama’s executive memo last April, CMS published a proposed rule on May 26 and opened a 60-day public comment period. The new standard, part of the Conditions of Participation to receive federal funding, also applies to critical access hospitals, mostly in rural areas, which until now did not have any Patient’s Rights standards.
Nearly all the 7,600 comments, 6,300 of them versions of a form letter, supported the intent of the regulation, which is to ensure that individuals admitted to a hospital are not denied “the comfort of a loved one, whether a family member or a close friend, at their side during a time of pain or anxiety simply because the loved ones . . . do not fit into a traditional concept of ‘family’.”
The detailed 13-page response offers an interesting insight into the limits of federal rule-making to change hospital practice and culture. Many of the public comments noted that differing state laws on same-sex marriage, domestic partnership, and adoption can be barriers to compliance with the CMS regulation, but CMS pointed out that these laws are beyond its jurisdiction. Other public comments suggested that fines or other sanctions should be imposed on hospitals that do not comply with the regulation, but CMS said that it lacks authority to do so, beyond the ultimate penalty of denying Medicaid or Medicare funding. The public comments also suggested that CMS create best practices for training in hospitals, which CMS said was outside the scope of this rule but important for hospitals to establish.
In the end, only two changes were made from the proposed rule. CMS agreed with comments that language about a patient’s “representative” might be misinterpreted as limiting visits to the patient’s legal representative or health care proxy. To avoid potential confusion, CMS reports, “We have replaced the word ‘representative’ with the term ‘support person.’ . . . A support person could be a family member, friend, or other individual who is there to support the patient during the course of the stay.” Similarly, CMS agreed that language about ensuring equality with “immediate family” was difficult to define, measure, and enforce. The revised language reads: “Ensure that all visitors enjoy full and equal visitation privileges consistent with patient preferences.”
The next step will be finalizing the requirement for written notice of visitation rights. And, of course, watching to see what hospitals actually do to ensure compliance.
Carol Levine is director of the Families and Health Care Project of the United Hospital Fund and a Hastings Center fellow.