President Obama issued a memorandum late last week directing medical personnel to end discrimination against same-sex couples in hospital visitation. All hospitals that receive Medicare or Medicaid must honor the wishes of same-sex couples. The move has garnered praise from Minnesota’s LGBT leaders.
Dale Carpenter, University of Minnesota Law School professor and outspoken conservative, said, “The president’s order has great symbolic importance as a recognition of the real needs of gay couples and families in times of medical crisis,” Carpenter said. “It’s practical significance is less clear.”
Carpenter said, however, that the new policy is not so easy to enforce. For instance, partners in gay and lesbian relationships must have some way to request their partner to be at their bedside or to make medical decisions, and if a person is unconscious, that can be difficult.
“But during the times when access would be most needed, as in a serious automobile accident or stroke that renders the person unconscious or unable to make decisions, the Obama order does not guarantee a long-term partner any access,” Carpenter says.
“We’re thrilled to move this issue forward,” Amy Johnson, executive director of OutFront Minnesota, told Minnesota Public Radio.
Obama’s memorandum pointed out Minnesota’s law that allows for advance medical directives to allow same-sex partners to name each other in terms of health care decisions.
While many medical personnel honor the requests of same-sex couples, sometimes that isn’t the case — and that’s where the problem lies, said Johnson.
“If you get somebody that is fearful or hateful, they can do so much to disrupt the smooth operation of a health care directive just by questioning it, just by the delay,” Johnson said.
Johnson said that everyone should have a health care directive. “They have got to get a health care directive. Everyone should have one. They are available online, and you don’t need a lawyer to get one.”
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 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.