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!

Obama's hospital visitation memo -- it's really not just about same-sex couples

From the press reports of President Obama's directive on hospital visitation and medical decisionmaking, you'd think it was a divisive gay rights issue, just one step short of authorizing same-sex marriage. And it is absolutely true that it should help prevent the tragedies involving gay and lesbian partners, including one in Florida, another in Maryland, and another about to go to trial in Washington state.

But the memo's reference to the elderly with no children who might be denied the companionship of a good friend is not just a throwaway. It's a fact. And it's a fact that will affect many gay people by assuring them the comfort of close friends, by legitimating that those friendships are a critical component of a happy life. And think of unpartnered gay people of all ages estranged from parents and siblings. They need this directive as much as any same-sex couple. For that matter, the deep relationships we form with friends even when we do have partners also deserve recognition.

There's a critical detail in the directive that bears mention. I read the memo as requesting that the new regulations ensure that a person selected as a decisionmaker in an advance medical directive be allowed to visit. (The syntax of the sentence is a bit convoluted, and if there is any doubt I hope the HHS rule writers will read it this way.) This is important because the easily available advance directive forms often do not state this. So it's actually possible for a person with a valid medical power of attorney to find himself or herself excluded from visitation. (see the examples from the states in the first paragraph, above.) Ridiculous and tragic, but there are enough stories for us to know this happens.

The new regulations will not create a right for a same-sex partner or close friend to make medical decisions. That is still left to each of us to designate in writing, or to state law which often ignores unmarried partners and friends. But it's an important step for all of us, not just for those of us in couple relationships. Yeah!

Law professors' conference addresses needs of same-sex partners in a "defense of marriage" state

Next week, the Association of American Law Schools will hold its annual meeting in New Orleans. This is the annual meeting of law professors from across the country. In acknowledgement of the needs of same-sex and unmarried partners in a state with a "defense of marriage" act, the AALS's executive director, Susan Westerberg Prager, today sent out the following message to all attendees. I am reprinting it in full here because I hope other associations with plans to hold meetings in states that refuse to recognize the needs of same-sex and unmarried different-sex partners will follow this fine example provided by the AALS.

December 28, 2009
Message to Annual Meeting Attendees:

Because Louisiana has placed in its constitution what is commonly referred to as a "Defense of Marriage" law, we have put in place some precautionary assistance for Annual Meeting registrants and their guests. This message is intended for those of you who are either unmarried but have a partner, married but in a marriage that would not be recognized by Louisiana Law, or who have a family member in one of these categories who will travel with you to New Orleans. Even in states that do not have such a law, there have been reports of hospital personnel who will not allow same sex partners visitation accorded family members, or who may even attempt to make the exercise of a health care power of attorney difficult. (For convenience of communication, I use the term "partner" in this message to refer to married and unmarried partners.)

AALS Managing Director Jane La Barbera has explored the practices in New Orleans, and has vigorously emphasized to the New Orleans Convention Bureau our concerns. We have received strong assurances that health care Powers of Attorney will be recognized by hospitals in the region, regardless of the relationship of the patient and the person holding the power. We have had that verified by the leadership of the Tulane Medical Center.

However, we do want to be of assistance to you in New Orleans if any of the following difficulties occur during the AALS Annual Meeting. Should any attendee or guest of an attendee experience a hospital refusing access (to the patient) to the patient's partner, or refusing the partner access to the patient's hospital doctors, or if hospital personnel are reluctant to recognize a power of attorney, we are providing the following list of individuals who are available to assist you. (The first is a local lawyer provided to AALS by the New Orleans Convention and Visitors Bureau without fee to AALS or our registrants. The second and third are AALS volunteers: Taylor is a Professor colleague who is incoming chair of the AALS Section on Sexual Orientation and Gender Identity Issues, and Jim is the lawyer spouse of the longtime Professor and Dean who is writing this message.) (I am omitting the phone numbers provided for the lawyers --np)

1. Robert M. Walmsley, Jr., Fishman, Haygood, Phelps, Walmsley, Willis & Swanson L.L.P
2. Professor Taylor Flynn
3. Jim Prager

All of these individuals stand ready to assist you with the hospital staff, and you should not hesitate to call upon them. They will assist in communicating with the hospital staff, working their way through the hospital's chain of authority if necessary. We recommend that you try to reach Mr. Walmsley first unless the hour of your call would make it unlikely that he would be at his firm.

Should you have difficulty reaching a member of this group, contact the AALS Office at the Hilton New Orleans Riverside by calling the hotel at (304) 561-0500 and asking for the AALS Office in the Marlborough Room. If the office is closed, make sure you have left messages for both Taylor and Jim, and try each of them again. I do recommend that you and your partner each carry with you a health care power of attorney. Even in extreme circumstances where the power contemplates are not present, it is a useful statement of your point of view about the person(s) closest to you, and that can help get the designated individual access to you and to your hospital doctor if you are hospitalized.

We, of course, hope that no attendee or family member is faced with the need to navigate such a problem, but we do want you to call upon us should you find yourself in circumstances where we can be of help. We very much look forward to welcoming all attendees and their guests to the 2010 AALS Annual Meeting.

DC City Council votes 12-1 to recognize same-sex marriages from elsewhere

Congress will soon be thinking about same-sex marriage, whether we or they like it or not. The DC City Council today passed Bill 18-10 which requires the District of Columbia to recognize the validity of same-sex marriages that are valid where performed. The bill goes to the desk of Mayor Adrian Fenty, who will sign it, and from there to Congress for the mandatory 30-day legislative period during which Congress can disapprove it. Or, as is more likely for procedural reasons, Congress can just pass its own law during that time disallowing DC's recognition of same-sex marriages.


So which will it be? Will Congress respect self-government for DC (we call it "home rule")? Or will they wield the power they have to write our laws in order to score political points with anti-gay contingents in their states? It could get ugly.

I've summarized the statements made by the councilmembers, including former Mayor Marion Barry, the only one to vote against it. You can read them here. But I want to emphasize something from the statement made by openly gay Councilmember David Catania. He referred to the many documents he and his partner had to have--wills, powers of attorney, medical powers of attorney. He even said he was tempted to bring them. He said he was blessed because many families can't afford the cost of going to a lawyer to get those documents.

This really bothered me. DC already recognizes domestic partners, so anyone who enters a DP here is treated the same as a spouse for all the purposes to which Catania was referring. The argument for marriage equality is for equality, and using a different name (like domestic partnership) for same-sex couples is unequal and therefore wrong. But when the tangible benefits such as the right to make medical decisions, inherit without a will, make financial decisions, etc are the same, it's misleading to suggest otherwise.


Why not stick with the arguments about equality and justice? Was Catania afraid those weren't good enough, that he had to imply a lack of legal rights even though he and his partner, and any other DC couple, can get those rights by registering---and thereby not need expensive lawyers?


And the reference to medical power of attorney disturbed me for another reason. DC has a terrific law on surrogate medical decisionmaking. It gives domestic partners who have not registered the right to make decisions. Like New Mexico's law, it recognizes that when two people live together in a committed relationship, they are likely to want each other to make their medical decisions, whether they have registered that relationship or not. And since the point of selecting a person to make these decisions is to select the person that the patient would have selected if she had a written designation, it makes sense to put an intimate partner at the top of the list.

But DC's law has another critical component. It puts a "close friend" on the list of those authorized to make decisions, as do about 20 other states (and model laws). Like the others, it puts that category after priority given to various relatives. But...and here is the fabulous part...the DC statute gives someone lower on the list the ability to challenge the decision of someone higher on the list if that person can show that he or she knows the patient's wishes better. It might mean a court fight (Terri Shiavo shows us that even spouses and parents can wind up in court), but at least it is a mechanism designed to produce the decision the patient would want. I love that law and offer it as a model to other states.

I have been very critical of arguing for marriage equality using the medical decisionmaking example. ALL LGBT people (and straight people for that matter) share an interest in having the person they want make medical decisions. For unpartnered gay folks, they may well not want a parent or sibling to have that power, especially if there is estrangement. And the two studies I've found on who is chosen as a surrogate medical decisionmaker show that married straight people OFTEN do not pick their spouses (33% and 50%). So we need easy to use advance health care directive registries. Read what I wrote about them here.

I'm hoping the DC City Council will put that on its agenda. Meanwhile, I'm proud of my city for supporting equality, and I'm just as proud that they have the best surrogate medical decisionmaking law in the country.

Love makes a family...but only through marriage

On a day when most people are focused on the marriage win in Iowa (watch for my post on the court's opinion soon), I read the news that the Connecticut group Love Makes A Family is disbanding. Its "core purpose" was achieving marriage for same-sex couples, and., having done that, it is closing up shop. So I guess its name should have been Marriage Makes a Family.

Often when I talk about the ideas in Beyond (Straight and Gay) Marriage, someone says to me that s/he agrees with me but that making marriage matter less should happen after same-sex couples can marry. The folding of this Connecticut group confirms my fears that marriage is the end point for many people and that achieving justice for the same-sex couples who don't marry and for all the gay men and lesbians, and their children, who are not partnered is not on the agenda.

What could this group do to further the well-being of all gay men and lesbians in Connecticut? The list is long, but here's one example -- push for a free, easy-to-use advance directive registry. Now if you get married in Connecticut, your partner can visit you in the hospital and make your health care decisions in an emergency. But what about the unmarried couples and all the unpartnered gay men and lesbians?

Love Makes a Family could become part of a coalition working to ensure that everyone in the state can select the people to make their emergency health care decisions. There are states with model registries (my top nominee is Idaho). They could advocate a law like that in the District of Columbia that gives unmarried/unregistered domestic partners priority decision-making authority and that lets someone farther down the list of priority decisionmakers trump someone higher up the list if that person can demonstrate that he or she knows the patient and the patient's wishes better.

Lesbians and gay men often move away from homophobic relatives and gay-unfriendly cities and towns to more supportive areas of the country, like Connecticut. All of them, not just those who marry, need laws that make it as likely as possible that the person they would pick will be able to visit them in the hospital and make their emergency health care decisions.

I've got more agenda items on my list. Unfortunately, there's no LGBT equality group in Connecticut to discuss them with.

Hospital visitation and health care decisionmaking autonomy for EVERYONE

Wisconsin may be poised to go down the same road Maryland choose last year -- the conflation of recognition of same-sex couples with the needs all people have, especially LGBT people estranged from their families of origin, to hospital visits from loved ones and medical decisionmaking by the person who knows them best. (Even Obama got it wrong in his acceptance speech). And Wisconsin is actually getting it worse; they are making couples register as domestic partners to get rights that all human beings deserve.

It seems that whenever a state passes anything with the phrase "domestic partners" for same-sex couples, that's supposed to count as a gay rights win. But look at what Wisconsin actually plans to do. The couple must be same-sex only and must live together. If they register, then they can visit each other in the hospital and make medical decisions for each other.

What is wrong with this picture? Ask my 60+ year old friend in Maryland, who is single yet cares as passionately as her coupled friends about who gets to visit her and make health decisions if she can't. And she's not even estranged from her closest living relative -- a sister 2500 miles away. Think about the gay people who move to gay-friendly areas, away from families of origin. I care that the people they consider family be able to visit them in the hospital. I care that their wishes about a surrogate health-care decisionmaker be upheld.

There ARE answers. A free, easy to use, highly publicized advance directive registry. There are models in gay-unfriendly states, like Idaho, and they protect everyone. How about a law that requires hospitals to ask who you want to visit when you've admitted? It won't help emergency admissions. But the people listed in the advance directive registry should be admitted. And a "close friend" category would help, and I didn't make up that category. Many surrogate health care decision making statutes already list "close friends" among those who can make decisions. At least when no one else is at the hospital, when a person will be without visitors, "close friends" should be allowed.

I hate to put a damper on the celebrations in Wisconsin. I just think it's wrong to conflate recognition of same-sex couples with the basic human right to health care decisionmaking by the person we choose and the chance to be surrounded by loved ones in our darkest hours.

SAME-SEX MARRIAGE AND VISITING LOVED ONES IN THE HOSPITAL DO NOT BELONG IN THE SAME SENTENCE

By now we all know what Obama said about us in his acceptance speech, but here it is in total:

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 a hospital and to live lives free of discrimination.

Now I can't criticize the "live lives free of discrimination" part...amen to that. But as for hospital visitation, don't all hospital patients deserve visits from the people they love?? Don't all gay people deserve this...and isn't marriage a completely different issue?? By putting these two concepts in the same sentence, Obama has fallen into the rhetorical morass created by the marriage equality movement.

The rhetoric goes roughly like this...A lesbian is denied the ability to see her hospitalized partner; spouses are allowed to visit each other in the hospital; therefore lesbian (and gay) couples must be allowed to marry so they can visit each other in the hospital. So then Obama steps into this conversation, saying that we can't agree on marriage but we can agree that couples who can't marry should still be able to visit each other in the hospital.

But try this. Hospital accreditation standards include those who play a significant role in a patient's life, even if not legally related, within the definition of family. Neither gay nor straight couples should have to marry to visit each other in the hospital. Gay people without partners need assurance that those they love and consider family will be allowed to visit them in the hospital. Consider that LGBT people may be more likely than heterosexuals to move away from unsupportive families of origin and/or to more accepting cities or towns.

If we make any discussion of hospital visitation policies about same-sex couples, we are going to miss the vast numbers of unpartnered LGBT people who don't want their estranged parents given hospital access while their closest friends are kept out or who don't want to be left all alone because their families of origin live at a great distance and their families are choice are excluded.

In 2007, Virginia passed a law that requires hospitals to allow patients to choose their visitors. Gay and straight; coupled and not. That's the law Obama should support...along with a federal advance health care directive registry. He should also support LGBT equality..including in access to marriage...but not in the same sentence.

OUTRAGEOUS HOSPITAL BEHAVIOR

Readers of this blog know that my family policy agenda includes advance health care directive registries, first at the state level and then hopefully linked across the country. Today there's news of outrageous hospital behavior out of Florida. Janice Langbehn was denied access to her dying partner, Lisa Marie Pond, even after the power of attorney she held was faxed to Jackson Memorial Hospital in Miami. Langbehn has filed a federal law suit claiming negligence and intentional infliction of emotional distress. Gay rights legal group Lambda Legal represents Langbehn.

Before someone yells that this is why same-sex couples must be allowed to marry, consider just how long it will be before Florida, the only state that bans an individual gay person from adopting a child, recognizes same-sex marriages from elsewhere, let alone allows them in the state. Florida now has a statute banning same-sex marriage. And they will vote on a constitutional amendment to ban it in November.

We need a fix now and we need it for everyone, gay and straight, single and partnered. I'd like to see gay rights groups take the lead here, and I know they would find allies across the political spectrum. Meanwhile, what happened to Janice's family should be a crime, and I hope that Lambda's lawsuit will help spur a movement for free, easy-to-use advance health care directive registries.

ADVANCE HEALTH CARE DIRECTIVE REGISTRIES

Does your state have an advance health care directive registry? You may not know. I spoke about my book in Tucson, Arizona last week and told my audiences that the Arizona registry should be a model for other states. But almost no one in my audience knew that Arizona had such a registry! It's free; it's easy; and it provides anyone who registers a directive with a wallet card that you can carry with your driver's license. In an emergency, the hospital types the numbers on your wallet card into a database and retrieves your directive. Then all the medical personnel know your own wishes and whom you have selected to make health care decisions for you if you are unable to make them for yourself. Same-sex couples rightly fear being shut out of medical decision-making if one of them has a medical emergency. But the solution to this problem isn't marriage; it's guaranteeing that EVERYONE, gay and straight, partnered and not, has the person they want making their health care decisions. We can and should solve this problem for all LGBT people, and we can do it now by getting more states to follow the example of Arizona. (Idaho is another good one; their wallet cards have bar codes.)