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New Rules on Equal Hospital Visitation Rights for Same-Sex Couples Issued

New Rules on Equal Hospital Visitation Rights for Same-Sex Couples Issued

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.

From the White House blog:

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.

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58 comments

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9:38PM PST on Nov 27, 2010

My understanding is that there have been cases where the patient was awake and alert and same sex partners were still denied access despite patient requests. It seemed to have been the result of prejudice in parochial institutions or the whim or prejudiced staff or docs.

8:56PM PST on Nov 23, 2010

I have great difficulty accepting gays but to withhold their visiting rights to hospitals, seems totally ridiculous.
The sooner they change this law altogether, the better!

1:00AM PST on Nov 22, 2010

This is a small step in the right direction, but it needs to be stepped up to all hospitals, nation wide, weather or not the take Medicare & Medicaid Services. As it is, even with an Advanced directive that spells out, specifics for end of life care, power of attorney, which is supposed to give someone the legal authority to make decisions for another person, if they are unable to do so for themselves, and a will or living trust, which spell out, what is to be done with assets a couple share, many states still allow the family of a deceased, to not recognize a gay relationship, to take away assets both partners contribute to, to deny hospital visits even when a partner is dying, to deny access to children, etc, by law.

5:16PM PST on Nov 21, 2010

If it hasn't been mention before, I believe hospitals and/or the primary physician should be notified beforehand. Perhaps a document like the Right to Die Will would be the solution to who should be the person in attendance if the patient is unable to communicate their wishes. It does not matter what the gender is, love can be a great healer and the partner should be able to be there when a patient is severely ill or dying. No one should be alone at that time. No One!

10:58AM PST on Nov 21, 2010

My question exactly, Edith B.! What indeed happens if one of the pair is brought in unconscious and cannot choose?

7:49AM PST on Nov 21, 2010

as usual it is a matter of common sense and private sensitiviness, anyway I am a nurse in a Catholic country, but whwrw I work no one would even imagine not to allow a patient's partner to visit him/her, no matter if married, same sex or anything else. Only when the patient decides he doesn't want visite from someone we interfere.

2:34AM PST on Nov 21, 2010

Thanks

11:56PM PST on Nov 20, 2010

Thank you for posting.

11:09PM PST on Nov 20, 2010

Okay, progress not perfection!

10:32PM PST on Nov 20, 2010

This is long over due, but what happens if the patient is in no condition to sign the papers saying who they wish to visit? Will the old rules apply then, will family be able to prevent a partner from being there?

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