Bulletin Details

4052: January 13, 2011

Hospital Visitation Policies - Washington State Considerations

On November 19, 2010 the Centers for Medicare and Medicaid Services (CMS) released a final rule on hospital visitation, modifying Conditions of Participation for acute care and critical access hospitals. (See 75 Fed. Reg. No. 223, 70831, Nov. 19, 2010.) The rule goes into effect 60 days after it is issued, which means all hospitals will soon need to be in compliance. WSHA is providing this Bulletin and a model policy to assist hospitals in meeting the new requirements.

The goal of the changes is to eliminate discrimination against same-sex couples and others who may not fit the notion of traditional family visitors. Currently Conditions of Participation do not address the issue of visitation rights. However, Washington State law does address the issue and should be considered by hospitals working to implement the new federal requirements. Joint Commission standards should also be taken into consideration.

Federal Requirements

The new federal requirements include:

  • Hospitals must have written policies and procedures regarding visitation rights for patients, including any clinically necessary or reasonable restrictions or limitations that may need to be placed on the rights and the reasons for such restrictions or limitations.
  • The patient or support person must be informed of his or her visitation rights, including any restrictions or limitations, at the same time he or she is notified of other rights under the Conditions of Participation or for critical access hospitals, prior to providing patient care.
  • Hospitals must inform each patient or support person of the right, subject to his or her consent, to receive the visitors whom he or she designates including, but not limited to, a spouse, a domestic partner (including same-sex domestic partner), another family member, or a friend, and his or her right to withdraw or deny such consent at any time.
  • Hospitals must not restrict, limit, or otherwise deny visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.
  • Visitors must be ensured full and equal visitation privileges consistent with the patient’s wishes.

Many patients are informed of their other rights under Conditions of Participation – for example, the right to make an advance directive – at the time of admission to the hospital. Hospitals should consider integrating the visitation information as part of that process. For more information, see WSHA’s End of Life Care Manual.

The term “support person” does not appear to be defined in the CMS regulations, but in comments CMS states that individual state laws may help guide how this person is identified. Also in comments CMS states the support person may, but does not need to be, the same person legally responsible for making health care decisions if the patient is incapacitated. The designation of a support person does not need to be in writing. A hospital can seek legal documentation such as a power of attorney if there is disagreement between two or more persons about who is the support person.

Washington State Considerations

There are some areas of Washington State law hospitals should take into consideration when implementing policies.

First, Washington State has a legal requirement under the domestic partnership law enacted in 2007 that state registered domestic partners be granted the same visitation rights “as a spouse” when in a health care facility. (See RCW 26.60.070.) Hospitals drafting policies regarding visitation must take this requirement under consideration. However, many same-sex couples in our state are not registered domestic partners. Under the new federal rules, hospitals may not require same-sex couples to be registered domestic partners in order to have visitation rights.

Second, hospitals should be aware of the state surrogate decision-making statute (RCW 7.70.056). They should incorporate this statute into the visitation policy to be considered in a case where a patient is incapacitated and there is disagreement among individuals about who is a patient’s support person.

The Joint Commission

The Joint Commission has at least one standard that sets an expectation that family is involved in “care, treatment, and services decisions to the extent permitted by the patient or the surrogate decision-maker, in accordance with law and regulation.” (RI 01.02.02(8)).

In the context of this standard, The Joint Commission definition of family is quite broad and means, “A person or persons who plays a significant role in an individual’s life. A family is a group of two or more persons united by blood or adoptive, marital, domestic partnership or other legal ties. The family may also be a person or persons not legally related to the individual (such as a significant other, friend, or caregiver) whom the individual personally considers to be family.”

Hospitals should consider this standard in developing visitation policies.

Incapacitated Patients

In drafting policies regarding visitation, hospitals must consider issues related to incapacitated patients. Unfortunately, the new federal regulations do not explicitly address this issue. In a case where a patient is not capable of designating visitors, this role is given by the new federal rules to the “support person” (see discussion above). Hospitals typically should not request documentation from a person claiming to be a support person unless there is a disagreement as to his or her authority.

Hospitals must be cautious to not discriminate in requests for documentation. For example, if the hospital does not request documentation from a person claiming to be a patient’s spouse, it should also not request documentation from a person claiming to be a domestic partner.

Staff Education

Front-line staff are the people often called upon to make quick decisions about hospital visitation. Errors in judgment or lack of knowledge about hospital policies can create significant problems.

One story on lack of visitation access for a same-sex partner that captured national attention originated in Washington State. The story was precipitated by the actions of a front-line caregiver who did not have a good understanding of the hospital’s policy on visitation rights.

While the new law does not include a specific provision on staff education, once the hospital has drafted and implemented its new policy it should make an effort to ensure staff is informed of the new requirements. Briefing on the requirements should be a regular part of orientation to the hospital and included in routine review of policies and procedures for existing staff.

Please contact Taya Briley at (206) 216-2554 or tayab@wsha.org with any questions.

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