New Healthcare Directive in the Making?

The federal Department of Health and Human Services (HHS), has just proposed a new rule broadening patients’ rights to have visitors in the hospital.

The Proposed Rule would allow patients to name the individuals whom they want to visit them in the hospital, and the hospital must honor these wishes. Their choices wouldn’t be limited to immediate family, even in the ICU, as hospitals’ policies often now require. (Of course, there would be exceptions based on medical appropriateness.)  The impetus for the rule, in part, is to ensure that Members of same-sex couples will be entitled to visit each other in the hospital. The Proposed Rule would apply to hospitals participating in Medicare and/or Medicaid. In other words, almost all hospitals.

The Proposed Rule would apply to all patients, and thus opens a new opportunity for estate planning attorneys to counsel clients about their rights as patients.

In the background section of the Proposed Rule, the HHS Centers for Medicare and Medicaid Services (CMS) briefly discusses its vision of the implementation of this regulation. CMS believes that:

●     The patient’s verbal designation of individuals as visitors should be sufficient, as long as the patient has the capacity to communicate.

●     Absent a patient’s ability to communicate, the patient’s legal representative could designate the individuals for visitation.

●     Where patient representation flows from a legal relationship recognized under State law (e.g. marriage, civil union, domestic partnership, parent-child relationship), a hospital should not require documentation of this legal representation for the purpose of designating visitors.

Meanwhile, the Proposed Rule is silent on the prospect of individuals naming their visitors in advance, in writing. Will this rule pave the way for a new legal routine – the drafting of a Hospital Visitation Authorization as part of every client’s healthcare directives package? HIPAA didn’t explicitly require the creation of a stand-alone HIPAA Release, yet many attorneys have adopted this approach. Should this Proposed Rule specifically recognize such a hospital visitation document?

As of this writing, there are no comments from attorneys to HHS on this Proposed Rule in the public comment section of the government’s website. The public comment period is open through August 27. If you’d like to comment, you can do so here and click on “Submit a Comment,” or go to www.regulations.gov and search under Keyword/ID RIN 0938-AQ06. You can also send hard copy comments to: Centers for Medicare &Medicaid Services, DHHS, Attention: CMS-3228-P, Mail Stop C4-26-05, 7500 Security Blvd., Baltimore, MD 21244-1850.

If you have thoughts about this Proposed Rule, please share them with me at rsiegel@docubank.com.

Randi J. Siegel, MBA, is the President of DocuBank, the largest advance directive registry in the U.S., which ensures that the healthcare directives of its 175,000 enrollees are immediately available 24/7/365. Working with estate planning professionals since 1997, Randi frequently speaks at national estate planning conferences and has appeared on radio and television as an authority on registries. She is active in health policy pertaining to advance directives and serves as a Senior Fellow at the Jefferson School of Population Health in Philadelphia. Randi is an ongoing contributor to the Academy blog.

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