The new federal hospital visitation rules: "Conscience clauses" do not apply .. and what else the final rule does or does not cover

Of the 78 page publication available today from the Department of Health and Human Services, only 4 contain the actual regulations that will become effective 60 days after publication in the Federal Register. The gist of those four pages is simple. Hospitals governed by the rules of the Medicare and Medicaid programs must tell each patient that s/he has the right to receive the visitors she wants and visitation shall not be denied on the basis of race, color, national origin, religion, sex, gender identity, sexual orientation, or disability.

This is good news.

The other seventy or so pages report on the comments the agency received on the proposed regulations and the agency's responses to those comments. Here are the points that are most important to the well-being of hospitalized LGBT people.

Number one: The regulations have no impact whatsoever on medical decisionmaking when someone is unconscious or otherwise unable to make decisions. Several comments to the proposed rule raised issues related to medical decisionmaking, and the responses in this document consistently state that the matter is governed by state law and beyond the scope of the new rules. There is a gentle nudge to not only write out an advance directive naming a surrogate decisionmaker but to register that advance directive with a database that hospitals may have access to. (I have long advocated a federal database for advance directives, but for now the only options are some states or a commercial database).

Number two: The "conscience clauses" that you hear about for doctors and other medical personnel who do not want to peform procedures that are inconsistent with their values do not apply to refusing to carry out a patient's wishes concerning who visits or who makes medical decisions pursuant to an advance directive. In other words, a doctor who does not approve of same-sex relationships cannot exercise his "conscience" to refuse to let a same-sex partner make medical decisions if that partner is named in an advance directive.

Number three: Today's document goes to great length to educate medical providers about circumstances that could include medical care for a child of a same-sex couple. It says that a legal adoption is "generally recognized" in another state (the language of the Full Faith and Credit clause would have been more accurate) and that this includes default decision-making that goes with being a legal parent, even if the parent and child cross state lines into a state that would not have granted the adoption. While pointing out that the legal status of a nonbiological or nonadoptive parent is governed by state law, the document also notes that "some states in fact recognize 'de facto' or 'functional' or 'equitable' parenthood, i.e. recognize non-biological and non-adoptive parents as legal parents."

Number four: Oral designation of a "support person" is sufficient to establish who can visit. That person then has the right to make decisions about who visits the patient if the patient becomes unable to say for him/herself whether a visitor should be allowed. The term "support person" is used, rather than "representative," because the latter is thought to have a definition in state law that is too narrow to serve the purpose of these regulations.

Number five: Only when a patient is incapacitated and so cannot make an oral designation, and more than one person claims the right to be the patient's "support person," can a hospital require any documentation. In those instances, the documentation the hospital can examine includes an advance directive, shared, residence or property or business ownership, financial interdependence, "marital/relationship status," existence of a legal relationship recognized in another state, an affidavit acknowledging a committed relationship, something in writing from the patient even if not a legally recognized advance directive.

So if your go to the hospital with your partner or your close friend, and that person is unconscious, you should not be required to provide documentation to show that you qualify as a support person. Think Karen Thompson arriving at the hospital to see Sharon Kowalski, turned away when she identified herself as a close friend who lived with Sharon. Sharon's parents were not around at the time. Under the new rules, she should not be turned away.

If both Karen and Sharon's father are there, however, the hospital can require documentation, but the rules do not require the hospital to pick a legal relative (e.g., parent) over someone with no legal relationship as the "support person." Again, this is not the same as a medical decisionmaker, which is governed by state law.

When there are conflicts between two people, the response to several comments notes that "[medical facilities] may also choose to utilize their own social work and pastoral counseling resources to resolve such conflicts to assure the patient's well-being." (Aside from me: Some states -- Colorado is one -- actually require by law that if all the people concerned about an unconscious patient cannot agree on a health care decision, they have to get together and try to agree; otherwise, any of them can go to court to try to get guardianship. "Close friends" are included in this group. I've had a doctor in Colorado tell me it works really well...)

A final note of interest. In response to some comments asking for examples of when patient visitation rights had been violated, the final rule refers the reader to the website that contains all the personal submissions that prove this really has been a problem in numerous instances. Of course there are 1266 public submissions so don't delve in unless you're prepared for a lot of pointing and clicking!