HRC Blog

HHS Announces New Guidelines on Visitation Rights Enforcement

Today, the Department of Health and Human Services (HHS) provided new guidance on the enforcement of regulations to protect the visitation rights of same-sex domestic partners in a hospital setting. This is the final step in the process of implementing the regulation which the Obama administration issued last November and went into effect in January. 

The guidance reinforces that all patients have the right to choose their own visitors during a hospital stay, including a visitor who is a same-sex domestic partner as one of the Conditions of Participation (CoPs) for hospitals participating in the federal Medicare and Medicaid programs.   It is worth noting that almost all hospitals in the country do participate in these programs and will have to meet these requirements.

Existing CoPs protect the rights of hospital patients to have representatives who can act on their behalf, however HHS 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. 

To date, the Centers for Medicare and Medicaid (CMS), the agency within HHS that oversees those programs, has not experienced problems with the new regulations. According to Jesse Moore, an HHS spokesperson, “We haven’t issued a response to anything, but if they don’t fix the problems and if the problems are serious, we can revoke accreditation.”

The guidance issued today is also 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.

In announcing the enforcement provisions HHS Secretary Kathleen Sebelius could not have been more eloquent: “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.”

Information about the visitation regulation is available in our Hospital Visitation Guide.  Additionally, HRC’s annual Healthcare Equality Index (HEI) measures how equitably healthcare facilities treat their LGBT patients and offers model policies including an LGBT inclusive definition of “family” for visitation purposes.  To learn more about these programs, and important steps LGBT individuals and their families should take to protect themselves, even with the new regulation in place, check out the Healthcare Equality Index 2011.

For more information on the CMS rules issued in November, please visit: http://www.hhs.gov/news/press/2010pres/11/20101117a.html

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