On Tuesday, January 19th, the Obama Administration announced plans to implement new hospital visitation regulations. These new regulations extend to same-sex couples the same rights as heterosexual couples. Under the new regulations, patients being treated at nearly all hospitals, specifically those that accept Medicare and Medicaid, will now be allowed to make their own decisions as to who has visitation rights and who can make medical decisions on their behalf.
The Secretary of Health and Human Services has added these new regulations to the already existing requirements that hospitals and critical access hospitals (CAH’s) must meet in order to participate in the Medicare and States’ Medicaid programs. Under these new regulations, hospitals are obligated to have written policies and procedures regarding patients’ visitation rights. They must inform each patient, or his or her representative, of the patient’s visitation rights, subject to his or her consent, to receive the visitors whom he or she designates, be it a spouse, another family member, or a friend, and of the right to withdraw or deny such consent at any time; and the hospital would not be permitted to restrict, limit, or otherwise deny visitation privileges on the basis of race, sex, gender identity, sexual orientation, or disability. Officials said the new visitation regulations would also benefit, for example, childless widows or widowers who may seek the care and companionship of an unmarried partner or friend. The regulations also apply to members of religious orders.
This is an important victory for many who have suffered the tragedy of being denied visitation to their partners. Can you imagine not being allowed to see your loved ones during their final hours? This social injustice has been documented numerous times and is exactly what the new proposed regulations are hope to quash. Previously, the regulations stated that visitation was only granted on the grounds of marriage or blood relation. Obama told the public, after the announcement, that the LGBT community is uniquely effected by hospital visitation rights and “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.”
One touching story inspired President Obama to enact the regulation. For nearly 4 years, Janice Langbehn has been tirelessly fighting for equality. Her fight was for hospital visitation regulations to be expanded beyond the traditional hetero-marriage model. Her partner, Lisa Pond, of 18 years collapsed with an aneurysm during a Florida vacation. She was taken to a Miami trauma center where she died, at age 39. Despite tirelessly fighting to persuade hospital officials to let her and their adopted children, Danielle, 15; David, 13; and Katie, 12 to visit Lisa, passed away without the comfort of family around her. Langbehn sued the hospital for the tragedy they faced. Lambda Legal represented the family which resulted in the court dismissing the lawsuit. The court’s reasoning was that no statue existed to protect Janice and her partner Lisa.
Obama, inspired by this story, decided to change these regulations. He drafted a proposal that was made public by the Department of Health and Human Services. After President Obama issued a presidential memorandum directing the Secretary of Health and Human Services to take steps to fix health care issues affecting LGBT families, he called Janice Langbehn to express his sympathies for her tragic loss.
Lambda Legal has noted that some important protections still need to be added to the new regulations. The new regulations do not outline who may visit when an incapacitated patient has not designated someone to make decisions. Also, there is still a need for an appeals procedure for visitation denials, and for hospices and nursing homes to have LGBT-specific nondiscrimination policies in place.
Though the outlook is positive the regulations will not take immediate effect because it will take time to fully flush out and draft the regulations. In the meantime, it is important to understand your rights for hospital visitation and to talk with your doctor about who you want to have access to you in times of medical emergency. Moreover, contact your attorney and have him or her draw up a hospital visitation authorization, a living will and a health-care proxy. These documents allow you to designate who can visit you in the hospital, as well as designate who will make health-care decisions should you become unconscious or unable to communicate them yourself. Under most state laws, lesbian, gay, bisexual and transgender partners are not considered family and these documents helps to overcome traditional definitions of family and outlines what family means to you while protecting your lifelong partner.
Also, please consider that even if you know your local hospital’s policy, emergencies can happen when traveling. Traveling to another state is one instance when the need for a living will and health-care proxy documents are crucial. Although some states, such as North Carolina, Delaware, Nebraska, and Minnesota, have already enacted their own laws granting patients the right to designate visitors, it is important to remember that each state, each hospital and each attendant at each hospital, has a different perspective about gay rights. Ultimately, you must have all legal documents in place and accessible in the event that you or a loved one needs hospitalization.
**Angela D. Giampolo, Principal of Giampolo Law Group maintains offices in both Pennsylvania and New Jersey and specializes in LGBT Law, Business Law, Real Estate Law and Civil Rights. Her website is www.giampololaw.com and she maintains a blog www.phillygaylawyer.com. Please feel free to send Angela your legal questions at [email protected].
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