In April, President Obama signed a memorandum designed to protect the hospital visitation and decision making rights of patients and their families, with particular focus on same-sex partners. On Wednesday, the Centers for Medicare & Medicaid Services (CMS) issued those revisions.
The memorandum directed the Secretary of Health and Human Services (HHS) to enact regulations that require all hospitals receiving federal Medicare and Medicaid funding to comply with a patient’s right to determine who may visit them, and to prevent hospitals from discriminating based on sexual orientation and gender identity, as well as all federally protected classes.
The new rules:
- Require hospitals to explain to all patients their right to choose who may visit them during their inpatient stay, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or other type of visitor, as well as their right to withdraw such consent to visitation at any time.
- Require hospitals have written policies and procedures detailing patients’ visitation rights, as well as the circumstances under which the hospitals may restrict patient access to visitors based on reasonable clinical needs.
- Specify that all visitors chosen by the patient must be able to enjoy “full and equal” visitation privileges consistent with the wishes of the patient.
- Update the Conditions of Participation (CoPs), which are the health and safety standards all Medicare- and Medicaid-participating hospitals and critical access hospitals must meet, and are applicable to all patients of those hospitals regardless of payer source.
As was stressed at the time, this is explicitly not the creation of any new right, but rather the reinforcing of the current law that, if a same-sex spouse has been granted power of attorney or has been designated by the patient as having visitor rights, such rights must be respected.
So, while these protections are limited in scope to work within the purview of the Defense of Marriage Act and do not patch all the holes in coverage that same-sex partners face, these changes will be welcomed by same-sex couples who potentially faced being (illegally) prevented from seeing their ill spouse or partner.
Lambda Legal issued a statement following the announcement of this memorandum that is particularly relevant here in demonstrating while these changes, while not perfect, are welcome:
“Late today Lambda Legal learned that, after signing a memo directing the Secretary of Health and Human Services to take steps to address hospital visitation and other health care issues affecting LGBT families, President Barack Obama called Lambda Legal client Janice Langbehn to express his sympathies for the tragic loss of her partner Lisa Pond and the treatment she suffered.
“The steps that President Obama outlined tonight are a great leap forward in addressing discrimination affecting LGBT patients and their families,” said Kevin Cathcart, Lambda Legal Executive Director. “These measures are intended to ensure that no family will have to experience what the Langbehn-Pond family did that night at Jackson Memorial Hospital. We are so proud of Janice and her family – she stood up and told her story and it made a difference.”
Last September, a federal district court rejected Lambda Legal’s lawsuit filed against Jackson Memorial Hospital on behalf of Janice Langbehn, ruling that no law required the hospital to allow her and their three children to see her partner. Langbehn and the children were kept apart from Pond by hospital staff for eight hours as Pond slipped into a coma and later died. After that Lambda Legal worked with other LGBT organizations and officials at Jackson Memorial Hospital to change hospital policies on visitation and respecting the wishes of same-sex couples and their families[.]
It is important to stress, however, that these new rules must be used in tandem with a patient having taken the appropriate steps to designate their visitors and to complete advanced health care directives. For more information on protecting your visitation and decision making rights, please click here.