HHS Issues Guidance to Prevent Discrimination in Visitation

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights issued guidance last week to remind hospitals and long term care facilities of their obligations to ensure that their visitation policies do not discriminate on the basis of religion or against other protected classes. The guidance consisted of a Dear Colleague Letter and Frequently Asked Questions (FAQs).

Under Centers for Medicare and Medicaid Services regulations, hospitals, long term care facilities, and critical access hospitals are prohibited from restricting or limiting visitation on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability, and are required to have written visitation policies incorporating these prohibitions. Although this guidance was targeted to hospitals and long term care facilities, it notes that "all entities that receive federal financial assistance from HHS, including those that are not long term care facilities, hospitals, or critical access hospitals are separately obligated to comply with federal civil rights laws" that prohibit discrimination on the basis of disability, race, color, national origin, sex (including gender identity and sexual orientation), age, and disability.

The FAQs highlight the importance of considering the religious needs of patients and other individuals when implementing visitation policies and procedures. To illustrate these needs, the FAQs discuss examples of troubling scenarios, such as:

• Hospitals prevented family members from bringing patients kosher or halal food that met the patient’s religious dietary restrictions, while allowing other visitors to bring patients food items.
• Members of certain religious groups were subjected to more rigorous screening processes and/or denied opportunities for visitation based on the patient’s and/or visitor’s religious affiliation.
• Hospitals adopted policies during the COVID-19 pandemic that allowed patients to visit with family members or friends, but prohibited them from visiting with clergy.

The guidance also contains information that may help covered facilities and entities communicate with patients and others regarding their visitation policies, procedures, and practices.

Contact: Karen Lipson, klipson@leadingageny.org