On Thursday, President Obama signed a memorandum that aims to protect the hospital visitation and decision making rights of patients and their families, with particular focus on same-sex partners, by directing 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.
Furthermore, the memorandum directs HHS to investigate the barriers that lesbian, gay, bisexual and transgender (LGBT) people and their families face in accessing health care services.
Here is the full text of the memorandum:
For Immediate Release April 15, 2010
Presidential Memorandum – Hospital Visitation
MEMORANDUM FOR THE SECRETARY OF HEALTH AND HUMAN SERVICES
SUBJECT: Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies
There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean — a loved one to be there for us, as we would be there for them.
Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides — whether in a sudden medical emergency or a prolonged hospital stay. Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.
For all of these Americans, the failure to have their wishes respected concerning who may visit them or make medical decisions on their behalf has real consequences. It means that doctors and nurses do not always have the best information about patients’ medications and medical histories and that friends and certain family members are unable to serve as intermediaries to help communicate patients’ needs. It means that a stressful and at times terrifying experience for patients is senselessly compounded by indignity and unfairness. And it means that all too often, people are made to suffer or even to pass away alone, denied the comfort of companionship in their final moments while a loved one is left worrying and pacing down the hall.
Many States have taken steps to try to put an end to these problems. North Carolina recently amended its Patients’ Bill of Rights to give each patient “the right to designate visitors who shall receive the same visitation privileges as the patient’s immediate family members, regardless of whether the visitors are legally related to the patient” — a right that applies in every hospital in the State. Delaware, Nebraska, and Minnesota have adopted similar laws.
My Administration can expand on these important steps to ensure that patients can receive compassionate care and equal treatment during their hospital stays. By this memorandum, I request that you take the following steps.
1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient’s care or treatment.
2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients’ advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients’ representatives otherwise have the right to make informed decisions regarding patients’ care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.
3. Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
You are hereby authorized and directed to publish this memorandum in the Federal Register.
With a growing (and valid) unrest over the administration’s inaction on the ‘Don’t Ask, Don’t Tell’ repeal, or any kind of positive movement against the Defense of Marriage Act, it would be easy to overlook the significance of this memorandum.
Thursday’s release is, however, an important step toward deleting the inequalities and sometimes inhumane treatment that LGBT families face in the health care sector. It also makes a strong statement: If hospitals do not comply, they will loose their federal Medicare and Medicaid funding.
It is important to stress, however, that the memorandum can only help providing that the patient in question has 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.
A precise date for when this directive will come into effect has yet to be issued but the 180 day period outlined above would seem to indicate a likely time-frame of perhaps up to a year.
It seems unfathomable that any hospital should deny a same-sex partner the right to visit their loved one, but this is precisely what has happened to many LGBT families in the past, and, according to reports, one case in particular caught President Obama’s attention.
Reportedly, the President was moved by the story of Janice Langbehn and her now deceased partner Lisa Pond who were profiled last year by the New York Times. Even though Janice had an advanced health care directive, she and the couple’s children were kept away from Lisa’s bedside for several hours as Lisa lay dying in Jackson Memorial Hospital in Miami.
Lambda Legal issued this release yesterday which discusses Janice Langbehn’s case and demonstrates why the memorandum is so 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 was very rewarding to hear ‘I’m sorry,’ from the President because that’s what I have wanted to hear from Jackson Memorial since the night Lisa died, ” said Janice Langbehn. “I hope that taking these steps makes sure that no family ever has to experience the nightmare that my family has gone through.”
The memorandum is sure to garner a backlash as it puts the concept of spousal rights for same-sex couples firmly back under the national spotlight. I would expect that conservative groups that are opposed to anything surrounding marriage equality, and especially those that are hostile to gay rights as whole, will spin this as President Obama taking a side-swipe at the Defense of Marriage Act.
However the memorandum seems quite explicit: This is 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.
But this memorandum does touch on one of the 1138 rights that marriage affords heterosexual partners that same-sex couples are currently denied, an inequality that can only be remedied by a repeal of the Defense of Marriage Act.
Nevertheless, Thursday’s memorandum is a significant step and it should be regarded as such.
Repeal DOMA, support the Respect for Marriage Act.
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