Bumpy road for equal vis­i­ta­tion

HIPAA, state rules may be prob­lem for gay cou­ples

Modern Healthcare - - The Week In Healthcare - Joe Carl­son

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.”

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.