Box Turtle Bulletin

Box Turtle BulletinNews, analysis and fact-checking of anti-gay rhetoric
“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
This article can be found at:
Latest Posts

Obama Issues Directive on Hospital Visitation and Medical Decisions

Jim Burroway

April 15th, 2010

When then-candidate Barack Obama accepted the Democratic Party’s nomination, he only made one LGBT-related commitment in his acceptance speech:

I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in the hospital and to live lives free of discrimination.

Today, President Barack Obama followed through on that commitment. Today he issued a Presidential Memorandum ordering ordered the Secretary of Health and Human Services (HHS) to issue new rules requiring hospitals who receive Medicare and Medicaid payments to provide visitation rights to same-sex partners, and to make it easier for gays and lesbians to make medical decisions on behalf of their partners.

The President’s memorandum makes a compelling case for the new rules:

[E]very 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.

Janice Langbehn

Janice Langbehn

This has been a very real problem and persistent problem. In February 2007, Miami’s Jackson Memorial Hospital denied Janice Langbehn access to her partner of eighteen years, Lisa Marie Pond, who had collapsed due to a brain aneurysm while preparing to board a cruise ship. For hours, hospital staff refused to allow Janice access even after a legal power of attorney was faxed to the hospital. It was finally a priest who had been called to give last rites who made sure Janice could say her final goodbyes. A social worker at the hospital defended the hospital’s actions, saying that Florida was an “anti-gay state.”

This evening, President Obama called Janice from Air Force One to say he had been moved by her case:

“I was so humbled that he would know Lisa’s name and know our story,” Ms. Langbehn said in a telephone interview. “He apologized for how we were treated. For the last three years, that’s what I’ve been asking the hospital to do. Even now, three years later, they still refuse to apologize to the children and I for the fact that Lisa died alone.”

The memorandum directs HHS to begin the process to issue new rules for hospitals to comply to or risk being denied Medicare and Medicaid payments. The rule-making process could be a lengthy one, requiring the creation and publication of new proposals, a period for public comment and additional approvals. The weakness of this process is that it could be overturned by a future administration, but that overturning would also have to undergo the same lengthy process — creation and publication of a new set of regulations, public comment period, etc. While it is not as immediate as an Executive Order, it is much more robust and durable. And because this proposed rule would provide that any patient — gay or straight — could designate anyone — a partner, trusted friend, a relative who is not necessarily the next of kin — to have access for hospital visitation and make medical decisions on their behalf, it’s hard to see that there would be a significant impetus to overturn this rule.

Comments

POST COMMENT | COMMENT RSS 2.0 | TRACKBACK URL

Dan L
April 16th, 2010 | LINK

All very well and good, but he’s been president 15 months, and he’s just getting around to doing this now? Why wasn’t this done 14 months ago?

Fred in the UK
April 16th, 2010 | LINK

I was under the impression that there were States that had laws that expressly define who can and cannot make ‘medical decisions’, am I incorrect in this? If I am correct which would take precedence State Law or Federal Regulation, where the latter requires, say a same-sex partner, to be able to make decisions but the former prohibits it?

gaylib
April 16th, 2010 | LINK

more empty words. And still many in our community dutifully bark and clap just like the trained seals they are. Absolutely pathetic. If Obama had a clue about LBGT issues maybe he would be more horrified to know that a gay or lesbian parent would be denied access to a sick or dying child because they aren’t recognized as a real parent. Of course all of these issues would be moot if Obama kept his promise to push for the repeal of DOMA. Furthermore, it illustrates the craven lies this administration and its allies tell our community. When it comes to DADT, we were told Obama would be overstepping his authority by issuing an executive order. That the congress was responsible for making policy. Yet those same sycophants are cheering this worthless attempt to hoodwink our community as bold and corageous. It is shameful. And it is shameful that the gay media laps it up so eagerly.

Dan L
April 16th, 2010 | LINK

Fred,

This memorandum will not change anything with regard to existing medical decision-making law. All that the regulation does is to further codify that hospitals must not ignore medical power of attorney and other directives, which they are already not supposed to ignore–though it can and does happen. A same-sex partner without a medical power of attorney will continue not to have any authority to make medical decisions (excepting, of course, in states that already recognize gay marriage/civil unions/domestic partnerships).

The somewhat more meaningful change is with respect to visitation. The regulation specifies that patients must be given the right to designate visitors, and that any visitors so designated must be given the same visitation rights as immediate family. So once in the hospital, or before that via medical power of attorney, a patient may designate a same-sex partner as such a visitor. The way that I read it, though, is that if a patient comes into the hospital incapacitated, and the same-sex partner does not have a medical power of attorney, he or she could still be excluded. So the change is still of a somewhat limited nature.

Paul in Canada
April 16th, 2010 | LINK

Seems like an end-run around the DOMA issue from here……

ZRAinSWVA
April 16th, 2010 | LINK

The fact that the President has brought this issue and our plight to the attention of the nation in such a manner is not insignificant. If even a small number of people opposed to our rights come to appreciate the depths of discrimination we face and change their opinion, good has been done. And when the new rules pass, our situation will have improved.

I can appreciate your frustration, Dan L and gaylib, but in my opinion incremental change is better than none at all. I remain optimistic that if the overturn of DOMA doesn’t happen now, it will happen soon!

RWG
April 16th, 2010 | LINK

December 2011 or early 2012 before it becomes effective. Now…what about the other 1137 benefits, rights, privileges and immunities conferred by the Federal government we don’t have that any two straight people can get for a $40 marriage license?

On the “Gay Agenda”: Hospital Visitation, ENDA and DADT | Taylor Marsh – TaylorMarsh.com – News, Opinion and Weblog on Progressive Politics
April 16th, 2010 | LINK

[...] http://www.boxturtlebulletin.com/2010/04/15/21877#commentsLast night, President Obama quietly issued a memorandum directing the Secretary of Health and Human Services to begin the process to issue new rules that will require hospitals which participate in Medicare and Medicaid to allow patients to designate who may visit them — the rules would prohibit discrimination based on a number of factors, including gender identity and sexual orientation. It also directs HHS to issue new guidelines regarding a person’s (sexual orientation aside) choices regarding who will have the authority to make healthcare decisions on her or his behalf. Having been through the process of paying attorney fees to have various legal documents drawn up — power of attorney and more — as the one legal option available to prevent being refused into my partner’s hospital room; and having been the friend and advocate for individuals who found themselves kept out of their partner’s hospital room, even with the same kind of legal documents in hand — this is an important action by Obama. [...]

Jack
April 16th, 2010 | LINK

Let’s hope this isn’t a sop before he appoints Leah Ward Sears to the Supreme Court.

customartist
April 16th, 2010 | LINK

Firstly, my sincerest condolences to Janice Langbehn and her family.

Several other points:

a.) Any healthcare insitiution not allowing a patient to appoint a decision-maker of their choice, is not providing the Best Healthcare, but a somewhat lesser quality. A notarized statement should be persented to the Hospital At A Minimum, whether they ask for it or not. Law suits should continue to flow for Health Care Institutions that deny partners’ abilities to make decisions. This is not just about Visitation.

b.) Many hospitals do ask “who” will make the decisions along with admission.

c.) Legally administered Powers of Attorneys are the legal precedent in all States. They MUST be recognized by all persons and Institutions. This is not just a Gay thing. *Look them up online, write it yourself, have it Notarized, and file it in the City or County Municipal office wher you live, get a copy of the recorded Doccument, Make copies to present as needed, store the Original in a Safety deposit Box, then it is legal. You do not necessarily need an Attorney. Do it – this is important in your life.*

Regan DuCasse
April 16th, 2010 | LINK

I am SO not impressed with this. We’ve been confronted with the most minimal and incremental gestures for years. As if each one is oh so important, and monumental FROM whoever grants it.

When the reality and implementation are literally empty.

Essentially, a lot of STRAIGHT people are also affected by such hospital problems if they have the status mentioned above.
It’s as if unless the laws affect straight people TOO, they are the only ones worth changing.

The real monumental and meaningful acts would be to repeal ANY discriminatory laws against gay people.
Constitutional discrimination in particular is an egregious use of the Constitution.
It changes fundamentally, the intents and purpose of said document for all citizens and damages gay citizens in INTENT.

As a Harvard trained LAWYER, our President should be able to be stronger in his defense of the Constitution, if not gay people and the standards of their responsibilities require the same rights.

Every time these gestures are made, we’re supposed to be grateful…
crumbs. Just crumbs and it’s undignified to be so grateful for such crumbs.

Even some well meaning straight people can’t fully appreciate the LEGAL hurdles in gay lives.
And even if the President is well meaning, if he is, (which I doubt), political expedience or lack of it at the expense of gay people was old a long time ago.

SCOTUS is already stacked. It needs to have more women, and even having a gay person on deck doesn’t mean anything if he supports anti gay policy.
And that would be the most likely gay person to sit on the bench, the one who would be like that.

The faces might all be diverse, but if they all think alike, it’s not really a court that could meet the needs of those whose Constitutional rights are the most at risk.

I don’t trust our President as far as I can throw him. Not even in his second term where he could do the most good for gay people without worrying about serving in office again.

celticdragon
April 16th, 2010 | LINK

Customartist

**Legally administered Powers of Attorneys are the legal precedent in all States. They MUST be recognized by all persons and Institutions. This is not just a Gay thing. *Look them up online, write it yourself, have it Notarized, and file it in the City or County Municipal office wher you live, get a copy of the recorded Doccument, Make copies to present as needed, store the Original in a Safety deposit Box, then it is legal. You do not necessarily need an Attorney**

Uh…you may want to talk to some people who have had significant problems with hospitals regarding medical POA.

At the Volkh Conspiracy law blog, I have read testimony from a hospital HR employee regarding this matter. He advised that hospitals, particularly religious based hospitals, can make it utterly impossible for you to utilize the POA by requiring a new, notarized copy every day and then requiring a lengthy review by legal risk management. The review process will last longer than the office hours of course, and you will need a new notarized copy the next day that it is now utterly impossible for you to collaborate with your partner to get.

Thinking of suing? The hospital is merely “following procedures” to “safeguard the patient”. Better hope for a sympathetic judge and a jury that doesn’t have any homophobic idiots on board.

This is how your legal documentation is worthless in the real world, and why GLBT people must have universally recognized marriage rights.

I am a transgendered woman and still married to my wife. I absolutely keep my documents of marriage and name change, and I cannot be absolutely certain outside of North Carolina that even that will be honored.

Jon
April 16th, 2010 | LINK

On the issue of visitation, the memo calls on HHS to propose a regulation concerning visitation for hospitals that accept Medicare/Medicaid. That regulation could simply say that if the person in the hospital has designated someone as a visitor, the hospital must allow that person to visit. But for cases where the hospitalized person is unable to communicate his/her desires, the regulation could also create a presumption that someone who cohabits with the hospitalized person has visitation rights.

Once the regulation is proposed, we will need to be active in making comments on the proposed reg to push HHS to make sure it addresses the problem to the greatest extent possible.

Fred in the UK
April 16th, 2010 | LINK

@Dan L, Thanks for the reply.

@Celticdragon, speaking from this side of the Atlantic I would have thought that litigation to recognise a valid Power of Attorney would have been a fairly open and shut case? I would have imagined that the power of litigation would have ensured reasonable systems to check and recognise persons who claim to have Power of Attorney. Why has this failed?

That begs the question, if hospitals have managed to wriggle out of litigation, how can they be stopped from wriggling out of the regulations?

Timothy Kincaid
April 16th, 2010 | LINK

I’m troubled by this approach. In my experience, whenever it is taken, the underlying desire is to diminish rather than recognize same-sex relationships.

“You are valued,” it says, “just like a old friend or next door neighbor or distant cousin. But you are not the same as an opposite-sex couple.”

This is not to say that I oppose allowing a good buddy to have access to hospital patients. That is likely to be in the best interest of the patient.

But I do not believe that the response to inequalities in recognition is to continue discounting relationships while eliminating one negative result.

And if we look at the language of this directive, it becomes clear that the president does not see a same-sex spouse as being “family”.

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.

A disinherited child, an estranged sister, a homophobic and manipulative parent can waltz in. And soon a 30 year gay spouse will have the same right to paperwork as a bowling buddy.

Don’t get me wrong, I am delighted that hospitals will not be able to deny visitor rights to those who have spent the lawyer fees to get the right paperwork. But this does not remedy the wrong that gay couples experience.

I know the President is constrained by the Defense of Marriage Act.

When we came to Candidate Obama and said that our couples suffer because, as one example, we cannot visit loved ones in the hospital, he did not say that he’d change the rules so that any ol’ person can visit. He said he’d support overturning DOMA.

I am hoping that he is not seeing this as fixing the problem so that he does not have to honor his promises.

Jason D
April 16th, 2010 | LINK

I share Tim’s concerns about the president.

I don’t understand why a hospital would deny partner visitation. They have to know that can’t be in the best interest of the patient. Makes me question the quality of care the patient receives if this is acceptable.

I would say this sort of treatment definitely violates the spirit of the Hippocratic Oath (do no harm!) and quite frankly seems like it should be a valid form of medical malpractice.

Ben in Oakland
April 16th, 2010 | LINK

anybody remember this little old marxist word….

co-optation?

Burr
April 16th, 2010 | LINK

About the best thing it does is call attention to it, but we can’t let anyone think this solves it by any means.

Richard Rush
April 16th, 2010 | LINK

While part of me feels positive like ZRAinSWVA (except for the DOMA overturn optimism), I also have much of the cynicism expressed by others.

At my most cynical I see the Democrats throwing us the minimum number of morsels to keep us voting for them, and holding back as much as possible out of cold political calculation to keep their hooks around us. If they granted us full equality (and assuming repeal would be unlikely) they would no longer have leverage to gain our votes insofar as the equal rights issues are concerned. Plus, they may lose some votes from centrists who are not yet on board with gay marriage. And then there is the Human Rights Campaign who’s top priority sometimes seems to be maintaining their existence for many more years.

Perhaps the mantra is: Give the constituent groups something, but never give them everything.

Tim
April 18th, 2010 | LINK

If he would give us the right to get married that would be the best thing. I
just think it is wrong to extend any rights to a group of people that still can not get married.My partner and I always filed all of the paper work with the hospital and never had a problem. I just feel this is not a compassionate gesture. This agenda is just to get your vote so he can stay in the house for another term.

libraryfelon
April 19th, 2010 | LINK

Maybe it’s just me, but doesn’t it seem like there’s some kind of problem with this memorandum. Like when someone else is elected president they can get rid of this it. I’m not a policy buff, so if I’m wrong about this then disregard. And, along with some of the other skeptics I’m wondering if providing some of the most obvious protections in piecemeal (like this) would actually do more to decrease the visibility of the need for any real change in LGBT legislation. People can understand wanting to see a partner at a hospital or filing taxes together, but a lot of the other privileges aren’t as obvious. So, if we get rid of the inequality that people are willing to sympathize with aren’t we delaying any actual change to equality? Will people see this and think that there is now no need for further change because simply adding exceptions is enough to protect rights?

Sonoma County Forcibly Separates Elderly Gay Couple « Queer Hatred
April 20th, 2010 | LINK

[...] of the opposition to President Barack Obama’s directive to HHS to formulate rules requiring hospitals and health care institutions to honor LGBT [...]

Leave A Comment

All comments reflect the opinions of commenters only. They are not necessarily those of anyone associated with Box Turtle Bulletin. Comments are subject to our Comments Policy.

(Required)
(Required, never shared)

PLEASE NOTE: All comments are subject to our Comments Policy.