Federal Requirements Regarding Hospital Visitation

On January 18, 2011, federal regulations regarding patients’ hospital visitation rights will go into effect.  These new rules, which apply to hospitals participating in the Medicaid and Medicare programs, require those institutions to permit patients to designate visitors of their choosing and prohibit discrimination in visitation based on a number of factors, including sexual orientation and gender identity.  For the first time, lesbian, gay bisexual and transgender (LGBT) people and their families across the country will have federal protections for a simple, yet immeasurably important right – to be able to be together in some of life’s most difficult times.

Moved by the tragic story of an LGBT family – Janice Langbehn, Lisa Pond and their children – who were kept apart as Lisa lay dying in a Miami hospital, President Obama issued a presidential memorandum in April 2010 directing the Department of Health and Human Services to develop regulations protecting hospital visitation rights.  HHS published draft regulations for public comment in late May and a final rule in November.  Those regulations, part of the “conditions of participation” for the Medicaid and Medicare programs, became effective on January 18, 2011.  The new rules are part of the Code of Federal Regulations, at 42 CFR 482.13(h) and 42 CFR 485(f).

What do the regulations require?

The regulations require hospitals participating in Medicaid and Medicare to have written policies and procedures regarding patients’ visitation rights.  Hospitals must: (1) inform each patient of his or her right to receive visitors whom he or she designates, including a domestic partner, (2) do not restrict or limit visitation rights based on sexual orientation and gender identity, among other factors and (3) ensure that all visitors have full and equal visitation rights, consistent with a patient’s wishes.  A hospital that fails to comply with these new requirements could be terminated from the Medicare program (the largest healthcare payer in the country), making it ineligible to receive either Medicare or Medicaid payments.

What can LGBT people do to protect themselves and their families in healthcare settings?   

While the new regulations provide important protections for visitation, there are other areas in healthcare settings –notably, medical decision-making—where LGBT people can face additional challenges.  State laws governing medical decision-making are often based on biological and martial relationships, and due to marriage inequality in most of the country, do not protect LGBT people and their families.  By preparing advanced healthcare directives and other documents, LGBT people can take important steps to ensuring that their wishes are respected.  For information about advanced directives and other documents, go to https://www.thehrcfoundation.org/professional-resources/advance-healthcare-directives.

What can hospitals do to ensure they are treating LGBT patients fairly?  

To comply with these regulations regarding visitation, hospitals must adopt written policies and procedures.  However, to more fully protect the rights of LGBT patients in healthcare settings, hospitals and other institutions should adopt policies that go beyond just visitation rights to ensure non-discrimination and cultural competency throughout every aspect of their operations.

Through its annual Healthcare Equality Index, HRC measures how equitably healthcare facilities in the United States treat their LGBT patients and employees.  The HEI also provides model policies and practices that hospitals working to comply with the new federal regulations regarding visitation, as well as improving how they treat LGBT people across the board, can adopt.  Learn more at www.hrc.org/hei.