Resources

Two Federal Agencies Expand Patient and Resident Rights

April 3, 2012

In the past few months, both the U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS) and the U.S. Department of Housing and Urban Development (HUD) issued pronouncements that expand the rights of hospital patients and residents of HUD-financed housing, including nursing homes, assisted living facilities and senior housing. The expansion of rights is of particular importance to the LGBT community, although the CMS pronouncements affect other populations as well.

Department of Health and Human Services Centers for Medicare and Medicaid Services

In new Interpretive Guidelines to the Medicare/Medicaid Conditions of Participation for Hospitals, CMS affirms the right of patients’ domestic partners (including same sex partners) and individuals acting informally in loco parentis to minors to:

  1. Enjoy full visitation with the patient,
  2. Receive notice of and assist in the exercise of the patient’s rights, and
  3. Be involved in treatment planning and consent/refusal of care.

The Interpretive Guidelines are not themselves binding law, but as the name suggests, merely guidance—and subject to potentially differing state law. To accommodate both the new CMS position and existing state law, hospitals will need to parse these Interpretive Guidelines, assess their own current policies and practices, and make adjustments.

The most significant challenges hospitals will need to overcome involve treatment planning and consent/refusal of care as they seek to strike the appropriate balance between the expansiveness of the new CMS Interpretive Guidelines and existing state law. For example, state law and the Interpretive Guidelines are potentially inconsistent about the role of domestic partners, persons in loco parentis and even family members when a patient is competent to make treatment decisions. They are also potentially inconsistent about the role of individuals who self-assert a relationship to an incapacitated patient who has not previously executed a formal document granting representative status.

Hospitals should also take note that CMS and State Survey Agency surveyors will use the new Interpretive Guidelines when they survey hospitals for compliance with the Medicare COPs. This situation can occur even in a hospital that enjoys deemed Medicare status through Joint Commission or similar accreditation, if it  becomes involved in a “look behind” validation survey or complaint investigation.

HIPAA Compliance

In a separate modification to the Interpretive Guidelines to the Medicare hospital Conditions of Participation, CMS incorporated most of HIPAA’s privacy protections for patient information into the Patient Right COP. While this does not impose any new substantive requirements upon hospitals, it allows CMS to police HIPAA compliance through the survey/certification process. Hospitals that fail to observe HIPAA privacy requirements can now face termination of their participation in Medicare/Medicaid, in addition to the civil money fines that the Office for Civil Rights may impose. This new enforcement posture clearly puts a premium upon thorough HIPAA and HITECH policies and procedures—and arrives just in time for the anticipated release of significantly revised HIPAA/HITECH rules later this year.

Department of Housing and Urban Development

Unlike CMS, HUD’s expansion of resident rights is not mere guidance, but a set of final regulations that became effective on March 4, 2012. The regulations affect all owners and administrators of HUD-assisted or HUD-insured housing, all approved lenders in a Federal Housing Administration (FHA) mortgage insurance program, and all recipients and sub-recipients of HUD funds (such as public and assisted housing programs). The rule prohibits housing discrimination on the basis of sexual orientation, gender identity or marital status in these HUD programs.

Compliance with the new rule is required for participation in HUD housing programs, but notably the new rule does not amend the federal Fair Housing Act so as to create a broadly applicable protected classification for the LGBT community. HUD made no exception for faith-based housing providers whose religious tenets may not support the LGBT community, noting that participation in HUD housing programs is voluntary for the provider. HUD housing providers will need to review their admission criteria and procedures to comply with the new rule if they wish to receive HUD financial assistance.

To learn more about the CMS and HUD-issued pronouncements, or about Dykema's Health Care practice, please contact Maria Abrahamsen, Leader of the Firm's Health Care Practice Group at 248-203-0818, or Joanne Lax at 248-203-0816.


As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2012 Dykema Gossett PLLC.

As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2017 Dykema Gossett PLLC.