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Health Law Update Sarah E. Coyne, Kevin J. Eldridge

Hospitals: Will you have a visitation policy by January 18? And if you are accredited by The Joint Commission ("TJC"), will your bylaws be in shape by the end of March? Make sure your compliance officers and medical staff coordinators are not taking time off until these deadlines are met! By Tuesday, January 18, 2011, hospitals must have patient visitation policies in compliance with recent Centers for Medicare and Medicaid Services ("CMS") rules. And if your hospital is accredited by TJC, you should be updating medical staff bylaws and related documents by March 31, 2011 to ensure compliance with MS.01.01.01. (Try saying that 10 times fast. Okay, now try "Unique New York.")

Patient Visitation Policies: Effective next Tuesday, January 18, 2011

On November 19, 2010, CMS released rules requiring hospitals to have policies on patient visitation rights in place by January 18 and prohibiting restriction of visitation privileges based on race, color, national origin, religion, sex, gender identity, sexual orientation, and disability.

Much of the publicity surrounding the rule focused on equal visitation rights for same-sex partners. Wisconsin hospitals that updated or adopted policies to comply with the Wisconsin domestic partnership law (which required hospital policies to provide equal visitation rights to spouses and domestic partners) should not assume their policies are already in compliance with the CMS rule, which is broader than applicable state law.

Hospitals will be required to have patient visitation policies that set forth patient visitation rights, including any "clinically necessary or reasonable restriction or limitation" on such rights (e.g., necessary or reasonable restrictions for purposes of infection control, addressing disruptive visitors, patient need for rest or privacy, and court orders limiting contact). Hospitals will also have to inform each patient of his or her visitation rights and any restriction on such rights, refrain from restricting visitation for discriminatory reasons, and ensure full and equal visitation privileges consistent with patient preferences.

In appropriate circumstances, such as patient incapacity, hospitals must look to a patient's "support person," such as a spouse, domestic partner or other person designated by the patient, to exercise the patient's visitation rights. As we all know, it is not always an easy to determine the identity of an incapacitated patient's "support person." CMS does not prescribe a process for agreeing on a support person and suggests looking to - among other factors - the patient's relationship or legal status with another, shared residence or financial interdependence, or acknowledgement of a committed relationship.

Medical Staff Bylaws: Effective March 31, 2011

If your hospital is TJC-accredited, do not forget to revise your medical staff bylaws and related documents for compliance with MS.01.01.01 by the end of March 2011. For those of you with school-age children, this could make for a really fun spring break!

The key changes under the revised MS.01.01.01 address:

  • The types of procedures and provisions that must be included in the medical staff bylaws, and which associated details may be addressed in the related policies and rules and regulations.
  • The adoption and amendment processes for the medical staff bylaws, the related policies, and the rules and regulations.

Accordingly, hospitals must ensure that their bylaws and related documents contain all of the required provisions outlined in the standard and must ensure that the amendment processes for those documents comply with the new requirements. To be fully compliant with the new standard, all of these documents must be finalized by March 31, 2011.

For more details or if you have any questions, please contact Sarah Coyne at (608) 283-2435 / [email protected] / [email protected] or your Quarles & Brady attorney.

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