As this blog was posted, I was able to reach out to my local representative and receive some legal information in regards to questions many mothers are asking. Their reply and details have been added to this updated blog which are written in blue. I have included the link to the PDF file here for your own review, which in itself has additional links where you can find their citations.
Here are a few hot topics I wanted to break down. Please note that there are links to full documents and websites. I have summed up the pieces that are relevant to this blog.
Under federal law, certain rights of patients—including the right to participate in the development and implementation of his or her plan of care—are guaranteed at hospitals participating in Medicare.1 This includes most Wisconsin hospitals. The federal requirements do not apply to nonparticipating hospitals, but they may voluntarily adopt their own policies regarding patient rights…
Wisconsin law does not explicitly define the rights of other patients as Minnesota law does in a Patient’s Bill of Rights. However, Wisconsin law does require the communication of informed consent. Under Wis. Stat. § 448.30, a physician must inform a patient about “the availability of reasonable alternate medical modes of treatment and about the benefits and risks of these treatments.” Performing an act constituting the practice of medicine without informed consent is considered a direct patient care violation under Wis. Admin. Code MED § 10.03 (2).
Additionally, some general rights are provided to patients in Wisconsin through common law and case law. Generally, patients have a right to refuse unwanted medical care according to the U.S. Supreme Court.3 This right, as the court notes, is accompanied by the right to informed consent, as an individual needs to know about a treatment before exercising the right to refuse it.4 Similarly, the Wisconsin Supreme Court has recognized the general right to informed consent in order for the individual to determine what happens to his or her own body in relation to medical care.5 Notably, there are some exceptions to this right to refuse medical care, such as the procedures in the Wisconsin statutes for involuntary administration of psychotropic medication and for involuntary commitment. Another exception to the right to refuse medical care may be certain treatments for communicable diseases, as Wisconsin law provides the DHS and local health officers a procedure to order isolation or quarantine or certain other treatment of individuals who fail to comply with recommendations regarding control of communicable diseases.6
Wisconsin law does not include a Patient’s Bill of Rights as Minnesota law does, and no other state law guarantees an individual’s right to have two support persons present during labor and birth. Wisconsin law also does not explicitly regulate doulas as it does other health care providers such as midwives. Therefore, a patient’s right to have a doula present at a labor or birth is not guaranteed by law in Wisconsin.
Patients at Wisconsin hospitals participating in Medicare do have certain rights required by federal law, as noted on page one. 24 However, these rights do not include a guarantee of two support persons. The law requires a hospital to “have written policies and procedures regarding the visitation rights of patients, including those setting forth any clinically necessary or reasonable restriction or limitation that the hospital may need to place on such rights.”25 This law allows each participating hospital to establish its own visitation policies—which may or may not ensure a patient’s right to the presence of two support persons—and to adjust them when necessary. UW Health, for example, is one Wisconsin health system, including a hospital, that encourages the presence of doulas and other support persons during childbirth. 26
Under Emergency Order #1 issued by Governor Evers on July 30, an individual is required to wear a face covering indoors or in an enclosed space other than at a private residence. An individual may be exempt from the requirement if the individual is a child under the age of two, has trouble breathing, is unconscious or incapacitated, or has a medical condition, intellectual or developmental disability, or other condition that prevents the individual from wearing a face covering.7
No guidance on mask or testing requirements for patients at hospitals has been issued by the Wisconsin Department of Health Services, the Wisconsin Medical Examining Board, or the Wisconsin Hospital Association. However, guidance from the Centers for Disease Control and Prevention (CDC) states that “patients and visitors should, ideally, wear their own cloth face covering (if tolerated) upon arrival to and throughout their stay in the facility.”8 It recommends that facilities provide face coverings to patients who do not have one upon entry.9 The CDC does not recommend denying entry or care to a patient who is able to wear a mask but refuses.
Guidance from the Centers for Medicare & Medicaid Services (CMS) also recommends screening for symptoms upon entry to the facility and that hospitalized patients and those imminently undergoing a procedure—including patients in labor and delivery areas—be tested for COVID-19 when possible 24 hours prior to the procedure or admission.10 When testing is not available, CMS recommends that patients self-isolate for 14 days in advance of the procedure or admission.11 CMS does not recommend denying care to a patient who refuses to be tested.
Guidance from CMS and CDC is not mandatory and each hospital may implement and enforce its own policy regarding mask and testing requirements. As a private business, a private hospital may refuse entry or care to an individual who refuses to wear a mask or take a COVID-19 test. However, under federal law, a hospital may not refuse entry or care to an individual with an emergency medical condition if the hospital has an emergency department.14 Under this law, an individual with an emergency medical condition—including a patient in labor—must be examined and treated to stabilize the medical condition or be transferred to another medical facility.15 Presumably, this prohibition on refusing care would extend to an individual during an emergency situation in an emergency department even if he or she is not wearing a mask.
Can a hospital separate a mother and infant if they do not comply with testing?
No state or federal laws or rules require a hospital to separate a mother and infant if they do not comply with COVID-19 testing requirements. As with mask and testing requirements, each hospital may implement and enforce its own policy regarding the separation of a mother and infant.
Hospitals may choose to follow guidance on this topic from the CDC. The CDC recommends testing for all infants born to mothers with suspected or confirmed COVID-19 at approximately 24 hours of age, regardless of whether the infant has symptoms of infection.16 In areas with limited testing capacity, testing should be prioritized for infants with symptoms of infection.17 When testing is not available, an infant born to a mother with a suspected or confirmed infection should be considered as having a suspected infection.18
The CDC states that mothers with suspected or confirmed infections may feel uncomfortable caring for their infant in their room and may choose to separate. It states: “Ideally, each mother and her healthcare providers should discuss whether she would like the neonate to be cared for in her room or a separate location. … Healthcare providers should respect maternal autonomy in the medical decision-making process.”22
The CDC suggests that separation may be necessary for mothers who are too ill to care for their infants or for infants who are at high risk for severe illness, such as preterm infants or infants with underlying medical conditions.23 The CDC does not suggest separation for a mother and infant if they do not comply with a hospital’s testing requirements. However, it is not mandatory for a hospital to follow the CDC’s guidance, and each hospital may implement and enforce its own policies.
3) Breastfeeding & Covid
Some people have been going off of what the Center of Disease Control is suggesting. However, it is my personal opinion that the CDC has unrealistic expectations and contradictory recommendations on Covid19 during birth & breastfeeding. They state:
If the mother with suspected or confirmed COVID-19 does not choose temporary separation in the hospital, she should take precautions to avoid spreading the virus to the newborn, including washing her hands and wearing a cloth face covering when within 6 feet of her newborn. The newborn should be kept ≥6 feet away from the mother, as much as possible, including the use of physical barriers (e.g., placing the newborn in an incubator).”
- Call your hospital where you plan on giving birth and speak with the L&D (labor & delivery) Head Nurse. Ask them what their procedures look like in regards to your concerns about testing, masks, separation & breastfeeding. If you are not liking what you are hearing – ask them what their policy is on a patient that declines. BONUS: ask them if they have these policies in writing and to have them mailed to you. That way you can look over them with a fine tooth comb.
- Mandates are Not Law. Hospital Policy is Not Law. However, if they are deemed as a private business they may have the right to refuse care. They might ‘drop’ you as a client/patient due to their right as a private business to deny service. For example, some grocery stores will not allow individuals in without a mask and no one can do much about it (unless they are going to file an Americans with Disabilities Act lawsuit).
- Assess if you are ‘exempt’ from wearing a mask. The CDC states that children under the age of 2 years do not need to wear a mask, in addition to anyone who has trouble breathing. As a medical facility they will be able to see what your medical exemptions are so NO further questions should be needed. States such as Minnesota & Wisconsin have further detailed exemptions such as:
- Individuals with medical conditions, intellectual or developmental disabilities, mental health conditions or other sensory sensitivities that prevent the individual from wearing a face covering.
- While swimming
- While eating or drinking