On April 15, 2010, President Barack Obama issued a memorandum to the U.S. Department of Health and Human Services (“HHS”) calling for the initiation of rulemaking designed to ensure that Medicare and Medicaid participating hospitals respect the rights of patients to designate visitors, regardless of whether the visitors are legally related to the patient. In accordance with the Presidential memorandum, the Centers for Medicare and Medicaid Services (“CMS”) issued a proposed rule on Tuesday, June 22 to revise the Medicare conditions of participation for hospitals and critical access hospitals to ensure the visitation rights of all patients. Under the proposed rule, hospitals must inform patients of their visitation rights, any clinical restrictions on those rights, and their right to receive any visitors they designate. Hospitals are prohibited from restricting or denying visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity or disability. Pursuant to the proposed rule, hospitals must ensure that designated visitors have the same visitation privileges afforded immediate family members.

Prior to the issuance of the proposed rule, HHS Secretary Kathleen Sebelius issued a letter to leaders of major hospital organizations, including the American Hospital Association. The Secretary’s letter asked the recipients to urge their members not to wait for the conclusion of the formal rulemaking process before reviewing their current visitation policies to ensure they comport with the President’s suggested patient-centered visitation rights. The letter also welcomes input from the various associations into the rulemaking process. Comments in response to the proposed rule, which was published in the Federal Register on Monday, June 28, 2010 (75 Fed. Reg. 36610), may be submitted to CMS through August 27, 2010.