CMS recently released revisions to its Interpretive Guidelines for Hospitals (S&C 11-36-Hospital/CAH) to clarify patients' rights concerning designation of representatives.
Hospitals are obligated under certain circumstances to extend patients' rights to patients' representatives. CMS expects hospitals to give deference to patients' wishes concerning their representatives, whether expressed in writing, orally or though other evidence.
A patient's designated representative has the following rights:
Hospitals are expected to take reasonable steps to determine the patient's wishes concerning designation of a representative.
If the patient is not incapacitated, the patient may designate, either orally to hospital staff or in writing, another individual to be his/her representative. The explicit designation of a representative takes precedence over any non-designated relationship and continues throughout the patient's inpatient stay or outpatient visit, unless expressly withdrawn, either orally or in writing, by the patient.
If the patient is incapacitated, a representative may be designated by an advance directive, medical power of attorney, or similar document executed by the patient and designating an individual to make medical decisions for the patient when incapacitated. The explicit designation of a representative takes precedence over any non-designated relationship and continues throughout the patient's inpatient stay or outpatient visit, unless the patient ceases to be incapacitated and expressly withdraws the designation, either orally or in writing.
If the patient is incapacitated or otherwise unable to communicate his or her wishes, there is no written advance directive on file or presented, and an individual asserts that he or she is the patient's spouse, domestic partner (whether or not formally established and including a same-sex domestic partner), parent or other family member and thus is the patient's representative, the hospital is expected to accept this assertion, without demanding supporting documentation, and provide the required notice to the individual, unless:
Hospitals should adopt policies and procedures that facilitate expeditious and non-discriminatory resolution of disputes about whether an individual is the patient's representative. If the hospital refuses an individual's request to be treated as the patient's representative, such refusal must be documented in the patient's medical record along with the specific basis for the refusal.
Jennifer Claymon, a shareholder at Davis & Wilkerson P.C., specializes in health and employment law. She has been practicing in Texas for more than 10 years. Ms. Claymon represents large hospitals to small businesses and provides counsel to clients on compliance with state and federal labor laws. She can be reached at jclaymon@dwlaw.com.
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Hospitals are obligated under certain circumstances to extend patients' rights to patients' representatives. CMS expects hospitals to give deference to patients' wishes concerning their representatives, whether expressed in writing, orally or though other evidence.
A patient's designated representative has the following rights:
- To receive the required notice of patients' rights;
- To be involved in the development and implementation of the patient's plan of care; and
- To receive the information required to make an informed decision about the patient's care.
Hospitals are expected to take reasonable steps to determine the patient's wishes concerning designation of a representative.
If the patient is not incapacitated, the patient may designate, either orally to hospital staff or in writing, another individual to be his/her representative. The explicit designation of a representative takes precedence over any non-designated relationship and continues throughout the patient's inpatient stay or outpatient visit, unless expressly withdrawn, either orally or in writing, by the patient.
If the patient is incapacitated, a representative may be designated by an advance directive, medical power of attorney, or similar document executed by the patient and designating an individual to make medical decisions for the patient when incapacitated. The explicit designation of a representative takes precedence over any non-designated relationship and continues throughout the patient's inpatient stay or outpatient visit, unless the patient ceases to be incapacitated and expressly withdraws the designation, either orally or in writing.
If the patient is incapacitated or otherwise unable to communicate his or her wishes, there is no written advance directive on file or presented, and an individual asserts that he or she is the patient's spouse, domestic partner (whether or not formally established and including a same-sex domestic partner), parent or other family member and thus is the patient's representative, the hospital is expected to accept this assertion, without demanding supporting documentation, and provide the required notice to the individual, unless:
- More than one individual claims to be the patient's representative. In such cases, the hospital can ask each individual for documentation supporting his/her claim to be the patient's representative. The hospital should then make a determination of who is the patient's representative based upon who the patient would most want to make decisions on his/her behalf. Examples of documentation include: proof of a legally recognized marriage, domestic partnership or civil union; proof of a joint household; proof of shared or co-mingled finances; or any other documentation that is evidence of a special relationship that indicates familiarity with the patient's preferences concerning medical treatment.
- The hospital has reasonable cause to believe the individual is falsely claiming to be the patient,s spouse, domestic partner, parent or other family member.
Hospitals should adopt policies and procedures that facilitate expeditious and non-discriminatory resolution of disputes about whether an individual is the patient's representative. If the hospital refuses an individual's request to be treated as the patient's representative, such refusal must be documented in the patient's medical record along with the specific basis for the refusal.
Jennifer Claymon, a shareholder at Davis & Wilkerson P.C., specializes in health and employment law. She has been practicing in Texas for more than 10 years. Ms. Claymon represents large hospitals to small businesses and provides counsel to clients on compliance with state and federal labor laws. She can be reached at jclaymon@dwlaw.com.
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