OCR Issues Guidance on Visitation Discrimination
in Hospitals and Long Term Care Facilities

OCR Issues Guidance on Visitation Discrimination<br>in Hospitals and Long Term Care Facilities

By: Angie C. Smith, Burr & Forman LLP

Visitation in long-term care facilities and hospitals received a lot of attention during COVID
because of facility closures that led to limited visitation, and it is now a topic of interest for the
Office of Civil Rights (OCR) due to discrimination concerns. On January 25, 2024, OCR issued
guidance to hospitals and long-term care facilities to clarify obligations of those providers to
ensure religious non-discrimination for patient visitation.

Under federal law, hospitals, long-term care facilities, and critical access hospitals are prohibited
from restricting, denying or in any way limiting visitation to patients on the basis of race, color,
national origin, religion, sex, gender identity, sexual orientation, or disability. Additionally,
provisions of the Affordable Care Act and Section 504 of the Rehabilitation Act prohibit any
type of discrimination in certain federally funded programs and activities. In order to be in
compliance, providers are required to have policies and procedures to prohibit discrimination. In
fact, when becoming a Medicare provider, healthcare providers certify to the federal
government that they are in compliance with these non-discrimination laws.
Although the Centers for Medicare and Medicaid Services (CMS) is the agency that oversees
compliance with the regulations cited above, CMS has delegated its authority to enforce the
regulations pertaining to discrimination in visitation to OCR. Following this delegation, OCR
issued a set of frequently asked questions (FAQs) to serve as guidance for hospitals and long-term care facilities. Additionally, OCR held a call with stakeholders on February 6, 2023, to
further discuss its guidance. Below are the key topics covered by OCR.

  1. What constitutes visitation?
    The FAQ states that patients and residents have the right to receive visitors of
    their choosing, but it also noted that patients and residents can withdraw or deny
    consent to any visitor. A visitor includes, but is not limited to, a spouse or
    domestic partner, same-sex spouse or domestic partner, another family member or
    friend, and clergy minister or other faith leader.
    The guidance also reminds providers of their obligations to allow individuals with
    disabilities access to support persons, which is separate and apart from an
    individual’s right to visitors.
  2. Which facilities are covered by the visitation requirements?
    The guidance specifically references the regulations pertaining to hospitals,
    including critical access hospitals, and long-term care facilities, but it also
    referenced federal non-discrimination laws that apply to all entities receiving
    federal funding. Those laws prohibit entities receiving federal assistance from
    excluding an individual from participating in, denying an individual the benefits
    of, or otherwise discriminating against an individual in the entity’s programs and
    activities. Therefore, even those providers who may not be covered by the
    visitation requirements should review the guidance.
  3. Which patients are covered by these rights?
    Patients and residents protected by the visitation rights are not limited to Medicare
    and Medicaid beneficiaries. All patients or residents receiving services from
    Medicare and Medicaid-certified facilities are covered by this guidance, and the
    right to visitation and non-discrimination applies to all patients and residents,
    regardless of whether their hospitalization or residency is being paid for by
    Medicare or Medicaid.
  4. What are the notification obligations of the facilities?
    Hospitals and long-term care facilities are required to inform patients and
    residents of their visitation rights, which should include any information related to
    clinical limitations or restrictions on such visitation. These providers must also
    have written policies and procedures related to visitation that include any
    clinically necessary or reasonable restriction or limitation that the provider may
    need to place on the visitation rights of a patient and the reasons that would
    support clinical restrictions or limitations.
    As mentioned above, OCR recognizes that there may be clinical reasons that
    visitation with a patient must be restricted or limited, and OCR’s FAQs make it
    clear that any such restriction or limitation must be “clinically necessary” or
    “otherwise reasonable.” Examples provided were limiting visitation hours or the
    number of visitors at a time. However, it is important that any type of limitation
    or restriction be objective and not based on any stereotype or assumption. It
    should also be clearly outlined in the facility’s policies related to visitation.
    OCR states in the FAQs that a provider has a responsibility to provide auxiliary
    aids and services to individuals with a disability in order to provide equal
    opportunity to participate or benefit from the services provided, which would
    include the ability to have visitation. According to the FAQs, a policy that only
    allows for video remote interpretation instead of in-person interpreter “may
    violate” certain non-discrimination laws, if an in-person interpreter or reader is
    necessary for effective communication.
  5. What might constitute a discriminatory denial of visitation?
    If a policy or procedure subjects certain classes of visitors to additional screening
    or if it prohibits certain classes of visitors and not others on the basis of race,
    color, national origin, religion, sex, gender identity, sexual orientation, or
    disability. Examples given were as follows:
    1. Facility prevented family member from bringing patients kosher food or
      halal food to meet the patient’s religious dietary restrictions while
      allowing other visitors to bring non-religious food items to patients.
    2. Members of certain religious groups subjected to more rigorous screening
      or denied visitation.
    3. Policies that would prohibit clergy or religious leaders from meeting with the patient.
  1. Does a facility’s chaplain program affect the right to visitation by other faith
    Even if the facility has a chaplaincy program, it must still allow other types of religious or faith leaders to visit patients, if the patient requests such visitation. Likewise, a facility must abide by a patient’s choice to deny visitation to clergy or religious leaders.

Typically, when OCR issues guidance on a particular topic, we see corresponding scrutiny from
regulators and government enforcement agencies. Therefore, providers should take this
opportunity to review its visitation policies for compliance with the guidance and ensure staff are
educated on those policies.

OCR’s FAQs can be found here.
https://www.hhs.gov/civil-rights/for-individuals/special-topics/emergency-preparedness/faqs- patient-visitation/index.html?cm_ven=ExactTarget&cm_cat=HHS+Office+for+Civil+Rights+Releases+ Visitation+Guidance+Resources&cm_pla=Mark%27s+Memos+2024+Marketing+List&cm_ite= FAQ+on+Patient+Visitation+at+Certain+Federally+Funded+Entities+and+Facilities%e2%80%8 b&cm_lm=1612414245&cm_ainfo=&&&&&

Angie Smith is a Partner at Burr & Forman LLP practicing exclusively in the Healthcare
Practice Group. Kelli may be reached at (205) 458-5209 or acsmith@burr.com.

Posted in: Legal Watch

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