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Update: To be as prepared as possible, check out Lambda Legal’s Tools for Protecting Your Health Care Wishes.
Today the White House announced the publication of rules prohibiting Medicare and Medicaid hospitals from denying visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.
The rules were created in response to a Presidential Memorandum issued earlier this year which instructed the Department of Health and Human Services to create new rules allowing patients the right to choose their own visitors during a hospital stay.
Today, the Centers for Medicare & Medicaid Services (CMS) has issued that rule – a rule that will let patients decide whom they want by their bedside when they are sick – and that includes a visitor who is a same-sex domestic partner. The rule presents an important step forward in giving all Americans more control over their health care.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. CMS finalized the rules based on thousands of comments from patient advocates, the hospital community, and other stakeholders. The rules will be effective 60 days after publication.
For more information about the rules, visit CMS’ website: http://www.cms.gov/CFCsAndCoPs… and http://www.cms.gov/CFCsAndCoPs…
Brian Bond is Deputy Director of the Office of Public Engagement
18 Comments
Seems incompleteWhat if the patient is unconscious and unable to express their preferences. Will the hospital be compelled to allow a same-sex spouse to visit? Or at least have to obey medical directive paperwork expressing visitation preferences ahead of time?
Exactly!The cases that have made the news where partners were kept apart have often involved patients who never regained consciousness.
More work to be doneyou are correct in that the scenarios that were outlined are limited in scope. I was on a number of calls today with the White House, DHHS and CMS as they announced this. It was brought up that this is a good ruling (that included SO and GI) but only good if there was either legal paperwork in place between the two partners or that the patient was capable of making their visitor names known. It falls way short if the patient cannot make their wishes known, if there is no paperwork in place, if a family member happens to be anti-lgbt and objects, or if paperwork is not recognized by the state.
There are guidelines for grievances, and there is a mandate that all medicare and medicade participating hospitals MUST follow the ruling.
I have been assured that more guidelines will come from DHHS and CMS to address the concerns we have until such time as DOMA is repealed and anti-LGBT bias is null.
Issue of State LawsFrom my read of the language, they were trying to craft regulations that would work under the variety of state laws out there. The more draconian anti-gay hate amendments – like those in VA – preclude the regulations simply demanding that same-sex partners be treated equally as married people. The second bullet point – the p&ps required for visitation – should be where specifics for unconscious patients would be spelled out. I am guessing you will still have to have to some paperwork, that just declaring yourself a same-sex partner will not be enough, unless the state law is stricter.
Isn’t that the type of situationwhere POA’s are supposed to be used? This sounds to me like they can finally be consistantly enforced.
What states do not recognize the paperwork?
That’s convenient for the adminThey write a great big press release when they announced it, they can write one now, and they can write another if they ever fix it and get it right.
Three announcements with one Cinderella crumb.
and what happens even if the couple has paperwork?I’m thinking of Janice Langbehn and Lisa Pond at Jackson Memorial Hospital in Florida. See, e.g.,
http://www.lambdalegal.org/in-…
Ms. Langbehn had, or had faxed, power of attorney and other documents. They were registered domestic partners in their home state, Washington. She had the couple’s three kids in tow. None of it mattered. Case dismissed, in part at least because local law (note the references to the Erie case) didn’t impose a duty.
This is a typical OWH initiative of kind, soothing words — they’re very good at that — with nothing enforceable.
And it’s not enough just to have a “right” to visitation. What about the ability to make medical decisions? What about if blood relatives show up and try and exert control? (Google the case of Sharon Kowalski and Lisa Thompson — In re Guardianship of Kowalski, 478 N.W.2d 790 (Minn. Ct. App. 1991) — and you’ll see what I mean).
http://www.danpinello.com/Kowa…
Until the OWH can overrule the harpy at the admissions desk, or any careless judge at state court level, it’s difficult to see anything more than the Audacity of Hope in this. And hope doesn’t buy much these days.
The trial court concluded that “[c]onstant, long-term medical supervision in a neutral setting, such as a nursing home * * * is the ideal for Sharon’s long-term care,” and that “Ms. Thompson is incapable of providing, as a single caretaker, the necessary health care to Sharon at Thompson’s home in St. Cloud.” (Emphasis in original.) These conclusions are without evidentiary support and clearly erroneous as they are directly contradicted by the testimony of Sharon’s doctors and other care providers. The court is not in a position to make independent medical determinations without support in the record.
– Kowalski decision
That’s what I meant.As in where there are other family members (usually biological, such as parents or siblings) who seize the opportunity to shut out the same-sex spouse of however many years.
This is the situation I find myself in. I am nearly 100% estranged from my birth family. If I am incapacitated, I don’t want them anywhere near my hospital bed, much less making medical decisions for me. (Okay, to be honest, there’s one brother I think I can trust, but that’s it.)
We have all the legal paperwork, the wills, durable power of attorney, mutual trusts, medical directives, and so on. Like I said, I read those new regs and didn’t see anything in there that would really stop the mischief.
Off the top of my head — OhioEssentially any state banning not only same-sex marriage but any legal covenant or agreement purporting to convey rights commonly associated with marriage.
Exactly!Thanks for doing the research to pull up those specific cases.
As for me and my wife (coming up on our 12th anniversary), I’m hoping I’m dead before my family even learns I’m sick or injured.
Why does it specify
but not
Oh, that’s right. As Sci-fi Geek recently reminded us, perhaps at the urging of his employers at the White House, our marriages are not really marriages but are “marriages.”
Barely anything.Thanks for reminding me. Traveling over the holidays, got to remember to put a copy of the RDP in my bag, plus I will download visitation forms I got off the RI gov website (where we will be). Also must remember to look up the local ACLU contact number. Weird to think I usually travel with that info also.
This memorandum is nampy pamby. This is the best they could come up with “based on thousands of comments from patient advocates, the hospital community, and other stakeholders.”?
And if coram is complaining…not a good indication that this does much of anything.
Was “hopin” for a bit more as always.
Can I give Barack Obama kudos for this?Or is that wrong?
DOMAstipulates that for federal purposes, a spouse is in a heterosexual marriage. so they’re being careful not to conflict with federal law.
SureMy personal view is that it is a nice change but such changes will be fraught with further problems and will never be enough until DOMA is repealed. In other words, from an incrementalit approach, it is a fine baby step.
But the whole point of this, as I understand it,is to grant visitation rights to gay couples. Couching that in implicitly homophobic language is self-defeating. ”Yes, we recognize your right to visit your spouse, but we don’t recognize that that person IS your spouse.” And if a married gay person shows up at a hospital to visit her/his spouse, wouldn’t they be screwed, since they’re not registered as domestic partners?
Oh agreed