Accreditation Resource Services Newsletter
October 2020

CIHQ-ARS Blog

Patient Rights During COVID-19

By: Paula Brinn
COVID has changed our daily way of life and many expectations once in place by regulations are now lightened to allow healthcare to focus all efforts on providing safe care during this pandemic. Many may wonder how this affects the patient’s rights when they enter your facility needing healthcare services. Federal and state regulations have been established to ensure patients are treated with respect and dignity when receiving care. These regulations guide how the healthcare system ensures those rights are honored. Basic patient rights include the right to be treated with respect, the right to obtain medical records, the right to privacy of healthcare information, the right to make choices about treatment, the right to informed consent, the right to refuse treatment and the right to make end of life care decisions. Let us dig a little into how the national public health emergency has affected patient rights within the healthcare system.
On March 13, 2020, President Trump issued a national state of emergency in response to the COVID-19 pandemic. During a declared national state of emergency, section 1135 of the Social Security Act allows the Secretary of the Department of Health and Human Services to waive or modify certain healthcare regulations until the end of the emergency declaration. These current waivers, also known as blanket waivers, are retroactive to March 1, 2020. By waiving certain regulations and restrictions, healthcare organizations can focus more attention on expanding healthcare workforce, reducing paperwork, increasing hospital capacity, and promoting telehealth. The implementation of these waivers does not require facilities to send requests to CMS for approval, however, the expectation is that the waivers will not be utilized unless the facility is directly impacted by the pandemic and that facilities are back into compliance when the public health emergency is undeclared.
Blanket waivers related to patient rights or affecting patient rights available for implementation during this pandemic include portions of the following COPs/regulations:
  • 482.13 Patient Rights
  • 482.43, 482.61, 485.642 Discharge Planning
  • EMTALA section 1867(a)
  • Patient Self Determination Act for advanced directives
CMS requirement 482.13 Patient Rights, waiver can only be implemented for hospitals that are impacted by widespread outbreak of COVID-19. This is the only waiver that specifically spells out an expectation of level of impact before implementing relating to patient rights. According to the CDC, widespread outbreak is considered 51 or more confirmed cases as reported by the CDC. As of July 21, 2020, all states (including DC) had well over 51 cases reported. The waiver only applies to the following requirements within the Patient Rights COP: 482.13(d)(2), 482.13(h), and 482.13(e)(1)(ii). The waiver does not apply to other standards within that COP and hospitals are expected to continue to remain compliant with those standards.
Standard 482.13(d)(2) requires hospitals to provide individuals with medical records in a form and format requested in a timely manner. Hospitals have more time to provide patients with a copy of their medical record during the pandemic. It does not mean that medical records do not have to be provided. It simply means hospitals have more time and are not held to the standard of providing the request in a timely manner.
Standard 482.13(h) requires hospitals to have policies related to patient visitation. The wavier for visitation allows for restrictions of visitation as deemed appropriate by the facility as long as there is no evidence of discrimination. Policy and procedures do not need to be developed for visitation of COVID isolation and quarantine patients.
Standard 482.13(e)(1)(ii) defines seclusion and that seclusion can only be used with violent/self-destruction behaviors. Waiving this requirement allows facilities to seclude COVID and other patients as needed to prevent cross contamination and keep patients safe while in the healthcare facility. Monitoring of patients in restraint and seclusion for violent/self-destructive behaviors would still need to be met per hospital policy and regulations. Additionally, rules and regulations around discrimination, abuse, and neglect are still enforced.
CMS requirement 482.43(a)(8), 482.61(e), and 485.642(a)(8) are related to providing the patient with information about discharge planning. CMS is also waiving 482.43(c) which states that a registered nurse, social worker, or other qualified personnel must complete the discharge plan. A hospital may not be able to assist patients in using quality measures and data to select a nursing home or home health agency, but must still work with the families to ensure that the patient’s discharge is to a post-acute care provider that is able to meet the healthcare needs of the patient. This waiver is in place to help organizations quickly transfer patients and open beds that may be needed during the national emergency.
CMS is also waiving the requirements at section 1902(a)(58) and 1902(w)(1)(a) for Medicaid, 1852(i) (for Medicare Advantage), and 1866(f) and 489.102 for Medicare, which requires hospitals and critical access hospitals to provide information to patients about its advanced directive policies. This allows staff to provide care more efficiently to a larger number of patients.
CMS is waiving the enforcement of section 1867(a) of the social security act (Emergency Medical Treatment and Active Labor Act/EMTALA) to allow health systems (acute care hospitals, psychiatric hospitals and critical access hospitals) to medically screen patients at alternative locations to help prevent the spread of COVID. Patients have a right to be medically screened when seeking emergency services without fear of being turned away due to inability to pay or the hospital not wanting to care for that type of patient. Medical screening must still occur, and the hospital continues to be responsible for ensuring safe transitions to other facilities for needed care that cannot be provided at the current location. Additionally, organizations are responsible for ensuring state emergency plans are followed and not in conflict with this waiver.

CMS COPs with Waivers during Pandemic

Related to Patient Rights

Condition of ParticipationRegulation TopicWavier
Section 1867(a) of the Social Security Act Medical Screening Exams Offsite screening facilities can be utilized to screen patients.
42 CFR §482.13(h) Visitation Rights Waives right to visitation and informing the patient of that right.
42 CFR §482.13(e)(1)(ii) Seclusion Waives the definition of seclusion and when it can be used.
42 CFR §482.43(a)(8), §482.61(e), and 485.642(a)(8) Discharge Planning (Quality Data) Waives requirement to assist patient in understanding of quality data for SNF, IRF, LTCH, HH.
42 CFR §482.43(c)(1) Discharge Planning (List of Post-Acute Care Providers) Waives requirement to provide patient/patient representative a list of post-acute care providers.
42 CFR §482.43(c)(2) Discharge Planning (Right to Choose Post-Acute Care Provider) Waives requirement for patient/patient representative right to choose among acute care providers.
42 CFR §482.43(c)(3) Discharge Planning (Disclosure of Financial Interest) Waives the requirement for hospitals to disclose to patient/patient representative any post-acute care provider that hospital has financial interest.
42 CFR §482.43(c). Discharge Planning (Choice letter) Waives requirement to provide patient with list of post-acute care providers.
42 CFR §482.13(d)(2) Medical Record (Patient Copy) Waives the right for patient to have medical record in format requested in a reasonable amount of time.
CMS section 1902(a)(58) and 1902(w)(1)(A) for Medicaid, 1852(i) (for Medicare Advantage), and 1866(f) and 42 CFR 489.102 for Medicare Advance Directive Waives hospitals from having to provide patient with information about advance directives.
In summary, CMS has issued several blanket waivers during this current national public health emergency to ensure sufficient healthcare supplies and services to meet the needs of Medicare, Medicaid, and CHIP beneficiaries. CMS does not want to impede your ability to respond to or recover from a disaster. Healthcare beneficiaries of Medicare and Medicaid that provide services in good faith can be reimbursed without being subjected to sanctions for noncompliance for those regulations addressed in the blanket waivers. Providers are expected to come into compliance with any waivers implemented prior to the end of the emergency period.
Please visit CMS for more information about these waivers:
https://www.cms.gov/files/document/summary-covid-19-emergency-declaration-waivers.pdf
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