Ensuring Nondiscrimination in Patient Visitations

As we have previously reported, the Biden administration has maintained a concerted focus on addressing discrimination in the delivery and receipt of healthcare. In 2022, the Biden administration established the Interagency Policy Committee on Antisemitism, Islamophobia, and Related Forms of Bias and Discrimination, which, among other things, instructed HHS to produce reference materials for healthcare providers on discrimination in the delivery of patient care on the bases of race, religion, ethnicity and national origin and to include in those materials specific examples of antisemitic, Islamophobic, and related forms of bias and discrimination in healthcare settings.

All facilities, including hospitals, critical-access hospitals and long-term care facilities subject to patient visitation regulations, are prohibited from restricting, limiting or otherwise denying visitation privileges based on race, color, national origin, religion, sex, gender identity, sexual orientation, or disability and are required to have written visitation policies, procedures and practices regarding such prohibitions.

As care facilities of all types struggled to balance infection-control obligations with patient visitation rights during the COVID-19 pandemic, OCR received countless complaints about discriminatory visitation policies. Aggregating these complaints and other lessons learned from the pandemic, OCR released guidance in the form of in-depth FAQs to ensure that hospitals and long-term care facilities, critical-access hospitals, and any other entity that receives federal financial assistance from HHS are aware of their obligations to patients and residents.

The FAQs highlighted some important reminders, including:

1. Patients and residents have the right to receive any visitor they designate, including a spouse, domestic partner, family member, friend or faith leaders of their choosing. This is important because patients receiving care often feel isolated or distressed while in a care facility but find comfort and support through visitation from family, caregivers, friends, clergy and others.
2. Persons providing support to individuals with a disability because of said disability should be allowed irrespective of a patient’s or resident’s right to receive visitors or a healthcare entity’s infection-control requirements.
3. Patient visitation rights apply to all patients, not just Medicare or Medicaid beneficiaries, and to all entities that receive federal financial assistance from HHS.
4. All facilities are required to inform patients of their visitation rights. Facilities must also have written policies and procedures relating to patient visitation rights that include (i) any clinically necessary or reasonable restriction or limitation that the entity may need to place on the visitation rights of patients, and (ii) the reasons for the clinical restriction or limitation.
5. Facilities may limit patient visitation as long as (i) the restrictions are clinically necessary or otherwise reasonable, (ii) they inform the patients of the policies and procedures in advance of the provision or discontinuation of care, (iii) the policies are in writing, and (iv) restrictions may not be based on race, color, national origin, religion, sex, gender identity, sexual orientation or disability. We note that under federal civil rights laws, facilities may also restrict visitation for safety reasons so long as they are based on objective risks (e.g., limiting the number of visitors allowed inside the building or a room at a given time).
6. Facilities may limit visitation during infectious-disease outbreaks if they determine that the limitation is clinically necessary or otherwise reasonable and do not impose restrictions based on discriminatory grounds. Even during an outbreak or public-health emergency, facilities should maintain visitation policies or procedures and notify patients or residents as required under applicable regulations.
7. A policy or procedure is discriminatory if (i) it prohibits certain visitors or (ii) requires additional screening for some and not others. This may include preventing families from bringing kosher or halal food to a patient while allowing other visitors to deliver non-religious food items.
8. If a policy allows for visitors, it must also allow for visitation with clergy, ministers, chaplains or other faith leaders, even if the facility has a chaplaincy program.
9. Facilities generally may not base visitation policies on assumptions or stereotypes regarding the likelihood of transmission of a communicable disease within certain communities. That said, during the COVID-19 pandemic, hospitals were allowed to limit visitation in some high-spreading communities based on objective factors such as prevalence of the disease. These restrictions were permissible as long as they were related to infection control needs rather than discriminatory factors and were applied universally to all patients or residents.
10. When receiving care in a long-term care facility, a resident must be allowed access to immediate family members, the individual’s physician, and certain other individuals, such as state ombudspersons, so long as such access does not interfere with the rights of other residents.
11. A facility may restrict how a patient or resident interacts with a visitor only if it is clinically necessary and reasonably restrictive, but it may not limit or deny visitation because of (For example, it was permissible to require visitors to wear protective gear during the COVID-19 pandemic).
12. Covered entities must employ and abide by the same Centers for Medicare & Medicaid Services (CMS) regulatory requirements for virtual visitations that they follow for in-person visits. It is important that facilities ensure that any restriction on devices used to facilitate patient visitation do not discriminate based on religion. Further, long-term care facilities must provide alternative communication methods following the request for communication in lieu of an in-person visit, such as by phone or other technology.
13. All complaints may be filed via the OCR complaint portal.

KEY TAKEAWAYS AND CONSIDERATIONS

All healthcare entities should remember that patients and residents have a general right to receive the visitors of their choosing, including religious leaders. Going forward, entities will be required to balance the medical need to restrict visitors with patients’ rights. Where questions arise, entities should take a position of neutrality as to who may visit.

If an entity insists that there is a justified reason for denying a patient’s visitation rights, we recommend that the decision-making process include robust and complete documentation of the situation and the nondiscriminatory reasons for the prohibition. Further, and to ensure consistency, facilities should focus on providing staff with training on policies and procedures relating to visitation.