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The Rights of Patients to Visitors of Their Choice: CMS Expands the Meaning of "Immediate Family" and Through Regulation Requires Hospitals to Do the Same

The Rights of Patients to Visitors of Their Choice: CMS Expands the Meaning of "Immediate Family" and Through Regulation Requires Hospitals to Do the Same


American Health Lawyers Association
(June 2011)

"There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital."

Presidential Memorandum, Hospital Visitation—Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies (April 15, 2010).

The Case of Langbehn v. Public Health Trust of Miami-Dade County

Lisa Marie Pond and Janice Langbehn had been partners for eighteen years and adoptive parents to four children. The two women and their children were residents of the state of Washington. In February 2007, the family was in Miami, FL, to depart for a cruise vacation. Pond, an otherwise-healthy thirty-nine year-old, became critically ill aboard the cruise ship and was immediately rushed to the Ryder Trauma Center at Jackson Memorial Hospital. Despite efforts to save her, Pond suffered a brain aneurysm and died less than twenty-four hours after her arrival at the Ryder Trauma Center.

This was not a case of medical malpractice, but rather a case alleging negligence on the part of the providers at the Ryder Trauma Center with respect to a duty owed to the patient's loved ones who were denied access to Pond during critical hours of her care.1 The case gained national attention in 2008 and 20092 and had a direct impact on President Barack Obama's issuance of the April 15, 2010 Presidential Memorandum.

Langbehn filed suit against the Public Health Trust of Miami-Dade County, d/b/a Jackson Memorial Hospital, as well as three of the providers involved in Pond's care, two physicians and one social worker. Langbehn alleged that she informed the admitting staff of the couple's relationship, requested both access to Pond and information about her care and medical status, but was denied both during the critical hours of Pond's hospitalization. Specifically, Langbehn alleged that the admitting clerk refused to give Langbehn any information and refused her and the couple's children the opportunity to be at the patient's bedside throughout the ordeal. The medical record shows that approximately an hour after her arrival, Langbehn had a friend fax an executed power of attorney to the Ryder Trauma Center staff. The power of attorney authorized Langbehn to make medical decisions on behalf of her partner in the case of incapacity.3 Despite the documentation of this authority, the allegations were that the staff continued to deny access and information to the patient's family.

By the time Pond's sister arrived at the Ryder Trauma Center, approximately eight hours after Pond first arrived, the staff finally agreed to provide all of Pond's family, including Langbehn, her children, and her sister, with medical information and access to her. At that time, the family learned that Pond had been transferred to the intensive care unit and were provided the room number. However, many hours had passed and Pond was unconscious when her life partner and her children were able to be with her. She died the following morning.

On the basis of these allegations, Langbehn filed suit against Jackson Memorial Hospital. Despite her efforts to seek a remedy in the courts, in October 2009 Langbehn's case was dismissed by the U.S. District Court for the Southern District of Florida on the grounds that there was no duty owed by Jackson Memorial Hospital's physicians or other healthcare providers as to Langbehn and her children to substantiate a negligence action.

Presidential Memorandum and Promulgation of Expanded Conditions of Participation

Although the case was dismissed from federal court, Langbehn's high-profile battle has led, in part, to the new Conditions of Participation (CoPs) for hospitals and critical access hospitals (CAHs) that participate in the Medicare and Medicaid programs with respect to patient's rights and visitation. On April 15, 2010, President Barack Obama issued a memorandum to U.S. Department of Health and Human Services Secretary Kathleen Sebelius instructing the Secretary to implement new rules to ensure that hospital patients have the right to designate the visitors of their choice, whether or not they fall into a traditional legal designation of "immediate family member."4

On November 19, 2010, the Centers for Medicare & Medicaid Services (CMS) released its final rule promulgating the regulations that now require hospitals and CAHs to have "written policies and procedures regarding the visitation rights of patients."5 These new regulations took effect on January 18, 2011. CMS did not add or create a new CoP for hospitals; instead, it simply added to the existing Patient's Rights CoP found at 42 CFR § 482.13. The new regulations for hospitals regarding patient visitation rights are set forth at 42 CFR § 482.13(h)(1-4). CAHs did not previously have a CoP that specifically addressed patient rights; therefore, CMS created a new CoP for CAHs found at 42 CFR § 485.635(f)(1-4).

The language of the regulation is simple and mandates that in addition to having written policies and procedures in place, hospitals and CAHs must:

  1. Inform each patient (or support person, where appropriate) of his or her visitation rights, including any clinical restriction or limitation on such rights, when he or she is informed of his or her other rights under this section;
  2. Inform each patient (or support person, where appropriate) 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, domestic partner (including same-sex domestic partners), another family member, or a friend, and his or her right to withdraw consent at any time;
  3. Not restrict, limit, or otherwise deny visitation privileges on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability; and
  4. Ensure that all visitors enjoy full and equal visitation privileges consistent with patient preferences.6

The regulations specifically address that a patient may designate a "support person" to act on the patient's behalf as to visitor preferences, in the event that the patient is incapacitated or otherwise unable to articulate their preferences. The concept of a support person is not the same as a legal representative or patient representative who may have the authority to make medical and/or other legal decisions on the patient's behalf. CMS notes that a support person is distinguishable from the patient representative, whose authority may be governed by state law and regulation and is made known by the presentation of an advanced directive or healthcare power of attorney. Therefore, CMS removed the term "representative" from the rule and instead uses the term "support person" throughout.

CMS also makes clear that the patient's designation of a support person need not be any more formal than a verbal indication by the patient. Despite the informality, the hospital or CAH staff may be advised to make a notation of such preference in the patient's medical record for later reference. CMS counsels that formal documentation to establish the support person's status should only be required in the event that: (1) the patient is incapacitated, and (2) two or more individuals claim to be the patient's support person.7

The proposed language included the term "immediate family" at 42 CFR § 482.13(h)(4). In the final rule, CMS acknowledges that based on the comments received, "families of choice" may not necessarily conform to traditional definitions or legal designations of the term "immediate family," which may be defined by marriage, bloodlines, or adoption. CMS notes that the term itself is "difficult to define, measure and enforce."8 Therefore, CMS removed the term "immediate family" from the regulations. The new language, which reads "[e]nsure that all visitors enjoy full and equal visitation privileges consistent with patient preferences" is intended to be "patient-centered" and allow visitation by the patient's loved ones, regardless of any legal relationship the person may have to the patient.9

In order to ease the burden on hospitals, CMS does not set forth any specific guidance with respect to what must be contained in the facility's policy beyond what is noted above. CMS also makes clear that it does not believe that hospitals and CAHs must include each clinical reason that may justify a limitation to the patient's rights with respect to visitors. The language is instead broad and allows hospitals and CAHs the ability to determine what may or may not be a clinically appropriate reason to limit visitation. CMS does note, however, that hospitals and CAHs have a duty to clearly communicate the reasons for any restrictions and explain how they are aimed at patient safety. Examples provided include when the patient is undergoing care interventions, when infection control issues may be implicated, and when visitation may interfere with other patient care.10 It is important to note that the burden is on hospitals and CAHs to demonstrate that a restriction to a patient's visitation rights is clinically necessary.

CMS does remind providers of the requirement found at 42 CFR § 482.13(a), which mandates that hospitals inform patients of their rights, when possible, before administering care. This new requirement with respect to patient visitation rights is no different; therefore hospitals and CAHs must include the notice of visitation rights as described above, prior to the onset of care. Additionally, CMS reminds providers of the requirement to "notify patients of their advance directive rights and their right to access the hospital's grievance system, and information on how to do so."11 There are several means by which a patient can report a hospital for noncompliance, including filing a compliant through the hospital's grievance process, the state's survey agency, or an accrediting body. If the patient is a Medicare beneficiary, the patient has the opportunity to file a complaint with the Quality Improvement Organization (QIO) of the state.12 In addition to the patient, a visitor to the hospital who believes the hospital is not in compliance with the regulation may also file a complaint.

Conclusion

The Langbehn court admonished the hospital for its treatment of Langbehn and her children; however, it did not find that a duty was owed to them by the Ryder Trauma Center's staff to establish a claim for negligence. As a result, the family had no remedy in the courts under Florida law. Although these new CoPs, by themselves, would not necessarily create a legal duty sufficient to establish a negligence claim, they do require hospitals and CAHs to establish written policies and to inform patients that their choice with respect to visitors will be honored and respected. As a result, hospitals and CAHs must develop new policies. Additionally they should take the opportunity to evaluate their existing policies with respect to patients' rights and to revise them if necessary. Hospitals and CAHs also will need to educate and train their staff with respect to the new policy. This new CoP is not terribly onerous on its face, however, as with any CoP, noncompliance can be devastating for providers. In summary, while CMS has not created a new legal duty supporting third party claims against a hospital per se, hospitals and CAHs should be aware that these new CoPs may bolster a negligence claim if the same allegations in Langbehn were to be made again.

1 Langbehn v. Public Health Trust of Miami-Dade County, 661 F. Supp. 2d 1326 (2009).
2 Tara Parker-Pope, Kept From a Dying Partner's Bedside, N.Y. Times, May 18, 2009.
3 Langbehn v. Public Health Trust of Miami-Dade County, 661 F. Supp. 2d 1326, 1332 (2009).
4 Presidential Memorandum, Hospital Visitation—Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies (April 15, 2010).
5 75 Fed. Reg. 70831 (Nov. 19, 2010).
6 42 CFR § 482.13(h)(1-4).
7 See 75 Fed. Reg. 70831 (Nov. 19, 2010).
8 Id.at 70838.
9 Id.
10 Id. at 70839.
11 Id. at 70834.
12 Id. at 70835.
 

This article was originally published by the American Health Lawyers Association in its Hospitals & Health Systems Rx newsletter. Reprinted with permission.

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