CMS SOM App. A, Tag A-0216

A hospital must have written policies and

procedures regarding the visitation rights of patients, including those setting forth any clinically

necessary or reasonable restriction or limitation that the hospital may need to place on such rights

and the reasons for the clinical restriction or limitation. A hospital must meet the following

requirements:

(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, a domestic partner (including a same-sex domestic partner), another family member, or a

friend, and his or her right to withdraw or deny such consent at any time.

Interpretive Guidelines §482.13(h)(1)&(2)

Hospitals are required to inform each patient (or the patient’s support person, where appropriate) of

his/her visitation rights. A patient’s “support person” does not necessarily have to be the same person as

the patient’s representative who is legally responsible for making medical decisions on the patient’s

behalf. A support person could be a family member, friend, or other individual who supports the patient

during the course of the hospital stay. Not only may the support person visit the patient, but he or she

may also exercise a patient’s visitation rights on behalf of the patient with respect to other visitors when

the patient is unable to do so. Hospitals must accept a patient’s designation, orally or in writing, of an

individual as the patient’s support person.

When a patient is incapacitated or otherwise unable to communicate his or her wishes and an individual

provides an advance directive designating an individual as the patient’s support person (it is not

necessary for the document to use this exact term), the hospital must accept this designation, provide the

required notice of the patient’s visitation rights, and allow the individual to exercise the patient’s

visitation rights on the patient’s behalf.

When a patient is incapacitated or otherwise unable to communicate his or her wishes, there is no

advance directive designating a representative on file, and no one has presented an advance directive

designating himself or herself as the patient’s representative, but an individual asserts that he or she, as

the patient’s spouse, domestic partner (including a same-sex domestic partner), parent or other family

member, friend, or otherwise, is the patient’s support person, the hospital is expected to accept this

assertion, without demanding supporting documentation, provide the required notice of the patient’s

visitation rights, and allow the individual to exercise the patient’s visitation rights on the patient’s

behalf. However, if more than one individual claims to be the patient’s support person, it would not be

inappropriate for the hospital to ask each individual for documentation supporting his/her claim to be the

patient’s support person.

• Hospitals are expected to adopt policies and procedures that facilitate expeditious and non-discriminatory resolution of disputes about whether an individual is the patient’s support person,

given the critical role of the support person in exercising the patient’s visitation rights.

• A refusal by the hospital of an individual’s request to be treated as the patient’s support person

with respect to visitation rights must be documented in the patient’s medical record, along with

the specific basis for the refusal.

Consistent with the patients’ rights notice requirements under the regulation at §482.13(a)(1), the

required notice of the patient’s visitation rights must be provided, whenever possible, before the hospital

provides or stops care. The notice to the patient, or to the patient’s support person, where appropriate,

must be in writing. If the patient also has a representative who is different from the support person, the

representative must also be provided information on the patient’s visitation rights, in addition to the

support person, if applicable. In the event that a patient has both a representative and a support person

who are not the same individual, and they disagree on who should be allowed to visit the patient, the

hospital must defer to the decisions of the patient’s representative. As the individual responsible for

making decisions on the patient’s behalf, the patient’s representative has the authority to exercise a

patient’s right to designate and deny visitors just as the patient would if he or she were capable of doing

so. The designation of, and exercise of authority by, the patient’s representative is governed by State

law, including statutory and case law. Many State courts have addressed the concept of substituted

judgment, whereby the patient’s representative is expected to make medical decisions based on the

patient’s values and interests, rather than the representative’s own values and interests. State courts

have also developed a body of closely related law around the matter of a representative acting in the

patient’s best interest. Such case law regarding substituted judgment and best interest may be a resource

for hospitals on how to address such conflict situations as they establish visitation policies and

procedures. Hospitals may also choose to utilize their own social work and pastoral counseling

resources to resolve such conflicts to assure the patient’s well-being.

The required visitation rights notice must address any clinically necessary or reasonable limitations or

restrictions imposed by hospital policy on visitation rights, providing the clinical reasons for such

limitations/restrictions, including how they are aimed at protecting the health and safety of all patients.

The information must be sufficiently detailed to allow a patient (or the patient’s support person) to

determine what the visitation hours are and what restrictions, if any, apply to that patient’s visitation

rights.

The notice must also inform the patient (or the patient’s support person, where appropriate) of the

patient’s right to:

• Consent to receive visitors he or she has designated, either orally or in writing, including but not

limited to, a spouse, a domestic partner (including a same-sex domestic partner), another family

member, or a friend;

• Receive the visitors he or she has designated, including but not limited to, a spouse, a domestic

partner (including a same-sex domestic partner), another family member, or a friend; and

• Withdraw or deny his/her consent to receive specific visitors, either orally or in writing.

The medical record must contain documentation that the required notice was provided to the patient or,

if appropriate, the patient’s support person.

Survey Procedures §482.13(h)(1)&(2)

• Determine whether the hospital’s visitation policies and procedures require providing notice of

the patient’s visitation rights to each patient or, if appropriate, to a patient’s support person

and/or, as applicable, the patient’s representative.

• Review the hospital’s standard notice of visitation rights. Does it clearly explain the:

• hospital’s visitation policy, including any limitations or restrictions, such as visiting

hours, numbers of visitors, unit-specific restrictions, etc., and the clinical rationale for

such limitations or restrictions?

• right of the patient to have designated visitors, including but not limited to, a spouse, a

domestic partner (including a same-sex domestic partner), another family member, or a

friend, and the right to withdraw or deny consent to visitation?

• Review a sample of medical records to determine if there is documentation that the required

notice was provided.

• Ask the hospital to identify how the required notice is provided. Ask staff responsible for

providing the notice how they accomplish this. Ask the staff if they are familiar with the concept

of a patient’s “support person” and what it means.

• Ask a sample of current hospital patients or patients’ support persons (where appropriate)

whether they were provided notice of their right to have visitors. Ask if they were able to have

visitors when they wanted to. If not, verify whether the restriction/limitation on visitors was

addressed in the hospital’s visitation policies and notice, and does not violate the regulations at

§482.13(h)(3)&(4). (See interpretive guidelines for the latter provisions.)

• Ask a sample of current hospital patients or patients’ support persons (where appropriate)

whether the hospital did not limit some or all visitors, contrary to the patient’s wishes.