Breaking: Presidential memo boosts hospital rights of LGBT partners and their families
The Blend has received this news hot out of the White House Press Office.
The President, in an extremely positive development for LGBT families, has directed the Secretary of Health and Human Services (HHS) to ensure that hospitals participating in Medicaid or Medicare will allow patients to designate who may visit them as well as name their primary caretaker and decision maker. Countless tragedies have occurred because of denial of access or ability to decide on the health of a loved one because the hospital would only recognize the rights of a blood relative.
I’m happy to report that my state, North Carolina, recently put this into place on its own, as you’ll see in the memo.
According to the White House, these measures could require substantive changes to the visitation policies of hospitals in at least twenty-five states whose laws do not currently require the extension of visitation rights, and will hold hospitals participating in Medicaid or Medicare to the highest care standards nationwide.
The changes in this official memorandum also benefits widows and widowers without children, members of religious orders, and others whom otherwise may not have been able to receive visits from good friends and loved ones who are not immediate relatives, or select them to make decisions on their behalf in case of incapacitation. Full text of the memo below; the PDF can be downloaded by clicking the image.
April 15, 2010
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.
My questions (and answers):
- In practice how would this be enforced? If denied access or decisionmaking what are recourses?
- What would be the consequences of non-compliance for the hospital? The obvious — the hospital could lose its Medicare/Medicaid funding.
These details are to be determined by HHS as the process moves forward during the HHS rulemaking process which the memo details. It requires HHS to promulgate those rules, and once that’s concluded, it will be enforceable.
Below the fold, reactions from orgs, and an email from Janice Langbehn.Tammy Baldwin:
Statement of Congresswoman Tammy Baldwin
On President Obama’s signing of a presidential memorandum regarding the visitation rights of hospital patients and the ability to designate surrogate decision makers in the case of emergencies
April 15, 2010
“President Obama’s decision to direct the Secretary of Health and Human Services to take steps to ensure that hospitals participating in Medicare or Medicaid respect the rights of patients to receive visitors and designate others to make decisions about medical care in the case of an emergency is the right one. It follows the lead of many states and makes a strong statement about who we are as a nation and what we value.
No one should face the distress of lying ill or injured in a hospital bed with the loved one you designate barred from your bedside for any other than a compelling medical reason. For too long, such access has been arbitrarily denied many individuals, most especially to gay and lesbian Americans.
President Obama’s action tonight puts us another step closer toward our goal of equal rights for all Americans and I applaud his decision.”
President Obama Issues Memo on LGBT Health Issues; Calls Janice Langbehn from Air Force One
President tells Lambda Legal client that what happened to her was ‘outrageous’ and thanks her for her courage.
(New York, NY, April 15, 2010) – 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.
The President’s memorandum to the Secretary of the Department of Health and Human Services includes the following: HHS should promulgate rules for hospitals that receive Medicaid or Medicare funds that require them to respect the rights of patients to designate visitors. HHS should also take steps to ensure that such hospitals have adequate policies to respect the legal documents that some patients have designating who can make decisions for them if they are incapacitated. Finally, the President directs HHS to report back to him in 180 days with additional recommendations about actions it can take to address hospital visitation, medical decision-making and other health care issues that affect LGBT patients 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.”
UPDATE: I received a nice email from Janice Langbehn-Pond this morning.
from Janice K. Langbehn
date Fri, Apr 16, 2010 at 6:30 AM
hi Pam, thank you for covering the story about President Obama calling me and signing the memo yesterday. I know we have long way to go in the LGBT movement but if the memo enlightens one health care facility so that holding someones hand as they are dying is not a GAY right but a HUMAN right - I will take it.
Unfortunately it those last precious hours with Lisa the kids and I will NEVER get back - and at least President Obama was willing to say he was sorry for how we were treated. Jackson Memorial in Miami REFUSES to apologize to the kids and I.
www.theLPkids.com or www.theLPfamily.com
Today, President Obama signed a presidential memorandum taking important steps to protect the visitation and healthcare decision-making rights of lesbian, gay, bisexual and transgender (LGBT) people. This important action was inspired by last year’s New York Times profile of the tragic experience of partners Lisa Pond and Janice Langbehn. Despite having an advanced healthcare directive, Janice, and the couple’s children, were kept from Lisa’s bedside as she lay dying. Lambda Legal represented Janice in a lawsuit against Jackson Memorial Hospital in Miami and worked with them to revise their policies in the wake of the tragedy. As part of its ongoing efforts to promote executive actions which would improve the lives of LGBT Americans, the Human Rights Campaign worked with White House and Department of Health and Human Services staff in support of today’s memorandum.
“Discrimination touches every facet of the lives of lesbian, gay, bisexual and transgender people, including at times of crisis and illness, when we need our loved ones with us more than ever,” said HRC President Joe Solmonese. “No one should experience what befell the Pond-Langbehn family, and the President’s action today will help ensure that the indignities Janice and her children faced do not happen to another family.”
According to today’s announcement, the memorandum directs the Secretary of Health and Human Services (HHS) to promulgate a regulation requiring all hospitals that receive federal Medicare and Medicaid funding – nearly every hospital in America – to allow patients to designate who may visit them and prohibiting discrimination in visitation based on a number of factors, including sexual orientation and gender identity. In addition, the memorandum calls on the Secretary to issue new guidance and provide technical assistance to hospitals to help them comply with existing federal regulations that require them to respect individuals’ advanced healthcare directives and other documents establishing who should make healthcare decisions for them when they are unable to do so. Finally, the memorandum directs HHS to conduct a larger study of the barriers LGBT people and their families face in accessing healthcare.
In addition to efforts to address these and other issues facing LGBT people through executive and legislative action, the HRC Foundation has worked for several years to encourage hospitals and other healthcare providers to adopt pro-LGBT policies and practices. Since 2007, the Foundation, in a joint effort with the Gay and Lesbian Medical Association, has published the Healthcare Equality Index (HEI), a rating of healthcare facilities based on five main policy criteria: patient non-discrimination, visitation, decision making, cultural competency training and employment policies and benefits. In 2009, ten facilities reported LGBT-inclusive policies and practices for every one of the 10 HEI rated criteria. The 2010 HEI will be released in the coming weeks.
The National Gay and Lesbian Task Force responded to President Obama’s memorandum tonight that instructs the Department of Health and Human Services to establish a rule that would prohibit hospitals from denying visitation rights to same-sex partners, and allow same-sex couples to share medical power of attorney. The new rule will affect any hospital that receives Medicare or Medicaid funding.
Statement by Rea Carey, Executive Director,
National Gay and Lesbian Task Force
“With this action, the government is taking a significant step toward recognizing our underlying humanity. Most people in this country already agree that no one should be left alone to die or be denied the right to see their loved ones in the hospital due to cruel and discriminatory bias. This is a profoundly painful experience that loving families all across the country have had to endure for years. An end to this practice can’t come soon enough. We are pleased the administration has taken this step.”
National Stonewall Dems:
National Stonewall Democrats commended President Obama for issuing a memorandum that instructs his Department of Health and Human Services to issue regulations that would require hospitals that receive Medicare or Medicaid funding to allow same-sex couples visitation rights. The memorandum further required hospitals to allow patients to designate their medical power of attorney.
Said Michael Mitchell, Executive Director, National Stonewall Democrats:
“When President Obama accepted the Democratic nomination in Denver in 2008, he said that while not everyone may agree on same-sex marriage, ‘surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in the hospital.'” With his memorandum, the President took a bold step toward righting the injustice that too many lesbian and gay couples feel in their most vulnerable moments — when someone is injured or ill.
“We are proud of the President’s actions, and look forward to seeing it implemented as soon as possible.”
Freedom to Marry:
Statement from Evan Wolfson, Executive Director of Freedom to Marry, on President Obama’s directive to the Department of Health and Human Services to create new rules providing same-sex couples hospital visitation and medical decision-making rights in any hospital participating in Medicaid or Medicare:
“The President’s directive is a small, but welcome step forward. It addresses one of the many ways same-sex couples and their loved ones are made vulnerable and harmed by the denial of marriage and the safety-net of protections marriage brings – in this case, the assurance that a spouse can be by a loved one’s hospital bedside and participate in medical decision-making at a time of great need. The Administration’s step today, though small, will mean a lot to many people in harm’s way. The President’s memo is particularly noteworthy in its acknowledgment of how same-sex couples are uniquely affected by marriage discrimination and are thus in need of this kind of remedial presidential directive. Of course, the real cure is to end exclusion from marriage, pass the federal Respective for Marriage Act, and provide all families the full measure of protections. Piecemeal steps, addressing one protection at a time, will take up a lot more time than either the Administration or American families can afford.”
Third Way President Jonathan Cowan issued the following statement on the President’s announcement of a new HHS rule on hospital visitation:
“President Obama’s actions today recognize and reflect one simple common ground principle: human dignity. No matter what your viewpoint on marriage or any other form of relationship recognition for gay and lesbian couples, we should be able to agree that it is inhumane to deny a sick person the right to have their loved ones at their bedside in their time of need, and that every American, gay or straight, should be able to comfort the ones they love as they lay dying. Yet there are so many stories of heartache which illustrate that people are still being denied such access throughout the country, from Washington state to Florida, and everywhere in between. In drafting this memorandum, the Administration consulted with religious hospitals and health workers to be sure that it was crafted in a way that did not threaten religious liberty. Everyone should be able to protect and care for the ones they love when they are hospitalized. We applaud the President’s commitment to protecting the human dignity of every American and following the Golden Rule, treating others as we’d like to be treated.”