Bumpy road for equal visitation

Although thorny issues remain unresolved, gay rights advocates cheered last week's release of refined CMS rules mandating healthcare providers give same-sex partners the same visitation and decision-making rights that any traditional family member would enjoy in a hospital.

On Sept. 7, the CMS sent state surveyors updated guidance on how to determine whether hospitals that receive Medicare are complying with the new rules on patients' rights, which were prompted by an April 15, 2010 memo from President Barack Obama.

The new rules, incorporated into Medicare's conditions of participation regulations, require that hospitals provide all individuals the ability to designate their own visitors and patient representatives, regardless of sexual orientation, religion or any other protected classification. The goal is to give patients, not hospitals, the final say in who has access to their rooms and decision-making.

The changes mean administrators will have to establish new policies on visitation and recognition of patient representatives, and then train their staffs on how to follow the new rules, including properly documenting denials in adverse situations. The CMS instructed state Medicare surveyors to review hospital policies and records on visitors and to interview patients during their routine inspections.

The changes were prompted by news articles about a situation in Miami in which a partner and the children of a same-sex couple were kept out of a dying patient's hospital room because the two women could not legally be married under Florida law, and therefore were not family members under hospital policy.

Brian Moulton, chief legislative counsel at the Human Rights Campaign in Washington, commended the changes in the new rules but said that in some cases medical decision-making is governed by state laws, not federal rules.

That means that in states that don't recognize same-sex couples as being married or in civil unions, gay, lesbian and transgender patients may still find difficulties asserting their rights to make decisions as legal representatives for incapacitated patients if they don't have advance-care directives that are legal under state law.

The new rules mandate hospitals recognize visitors who claim to be family members, unless the hospital has a specific reason for doubting the claim.

However, experts say the rules get more complex in cases where the patient is unresponsive—particularly when it comes to designating the official patient representative.

Cynthia Stamer, a business attorney in Addison, Texas, who has studied the new rules, said the spirit of openness in the new regulations appears to conflict with the strictures for patient privacy enshrined in the Health Insurance Portability and Accountability Act. For example, HIPAA bars even family members from knowing a patient's personal health information in many circumstances.

“The challenging part is, this is not the only rule,” Stamer said. “You're going to have to figure out how to integrate this with HIPAA.”

For incapacitated patients, hospitals should now accept at face value someone's statement that they are a child or a same-sex partner, without requiring documentation such as birth records or civil union certificates, in the same way that heterosexual couples or their children aren't typically required to produce documentation.

Hospitals are allowed to deviate from giving the benefit of the doubt, but only in cases where the visitor is disruptive, when another person with the patient disputes the visitor's claims, or when the hospital has another reason to doubt the visitor's veracity.

The Mayo Clinic has had such a policy in place for years at its hospitals.

Dr. Sharonne Hayes, director of Mayo's Office of Diversity and Inclusion, said that in cases where a dispute arises, hospital employees are directed to call its Patient Affairs Office, which is staffed 24 hours a day to resolve conflicts.

“For us, it is very much engrained in our culture that the needs of the patient come first,” Hayes said. “We would do our due diligence … but frankly, we are going to look at things through the lens of, what's best for our patient? And we don't see that it serves any interest to go against the wishes of our patients by barring someone who they want to see.”