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!

HHS proposed regs on hospital visitation ignore the needs of those incapable of naming visitors

If ever there was a bi-partisan no-brainer it is that every hospitalized patient should be able to name his or her visitors, subject to a medical reason to exclude them. The proposed regs emerging from the Obama administration (on line now but subject to official publication on Monday) accomplish no more than that.

But what about emergencies, about patients unable to name their visitors? The proposed regulations are entirely silent on that, and we need comments in droves to get these regs to really meet the needs of the LGBT community.

To put this in perspective, I can only think of one well-known story of denied hospital visitation that would have been helped by the proposed regs. Julie Goodridge (of the famous Massachusetts marriage case - now divorced, but I digress) entered the hospital for the birth of the couple's daughter, and after complications and a cesarean section, her partner Hillary was denied the ability to visit her or their baby. (Hillary waited until the nursing shift changed and then identified herself as Julie's sister and got in.) Presumably when Julie entered the hospital she would have, if asked, identified Hillary as a visitor. The proposed regs require hospitals to tell patients they can choose their visitors.

But other cases, including Janice Langbehn's, for all the attention she has received from President Obama, are beyond the scope of these proposed regs. Janice's partner, Lisa, was an emergency admission. So was Robert Daniel, whose partner, Bill Flanigan, was denied access to him. (Lawsuits filed as a result of the actions of these hospitals failed). And Sharon Kowalski, whose partner, Karen Thompson's, battle to care for Sharon began when the hospital refused her access to Sharon on the night of Sharon's car crash.

Comprehensive regulations must address emergency circumstances by directing hospitals to admit certain categories of individuals as visitors. Here's my list: anyone named in a medical power of attorney, including alternates; anyone residing with the patient; anyone whose relationship to the patient places that person anywhere on the state's list of surrogate decisionmakers should the patient not have a medical power of attorney (this last one is very important as about 20 states include "close friends" on the list, and many LGBT individuals acknowledge their close friends as their family); and domestic partners. Now that federal regulations on sick leave by federal employees include and define the term "domestic partner" there is every reason to include this category in those who must be allowed to visit a hospitalized patient unable to name visitors.

Maybe there are better ideas than mine. So let's get talking. The one thing I know is that the proposed regs are painfully inadequate.

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!

More on Colorado's designated beneficiary law

Last week I wrote about the new Colorado law that allows any two unmarried adults to become "designated beneficiaries" and thus gain what essentially amounts to next-of-kin status. I love this law!

But it's still not a statute that matches the purpose of various laws to the families/relationships that the law should encompass. Here's what I mean. It's perfect that the law allows designation of a medical and burial decisionmaker and a person who will inherit if you die without a will. That's because the purpose of any law on those subjects is to advance individual autonomy.

But the selection of a designated beneficiary also establishes who can sue for wrongful death or obtain employee partner benefits. When I consider the purpose of those laws, I don't think autonomy; I think economic interdependence. So ability to recover for wrongful death should attach to anyone in a relationship of economic dependence or interdependence. No marriage or registration should be required. In fact, even married couples should have to show economic interdependence to come within these laws.

Colorado does this now for workers compensation survivors benefits. The purpose of these benefits is compensation for the loss of an economic provider. A spouse -- and now a designated beneficiary -- cannot receive the benefit if s/he was not living with the worker who died or not dependent, at least in part, on the worker who died. So far so good.

But the benefit should go to anyone dependent in whole or in part of the deceased worker. A few states do this now. Those laws should be models for all states.

I'm still so excited about the new Colorado law. It's a big improvement over the all-or-nothing status based on whether a couple is married, and I love the fact that the two people can pick the legal consequences they want. More laws like this and it will be easier to see the wisdom of matching the purpose of any law and the relationships subject to that law.

The extraordinary new Colorado law

When a legislature blinks on same-sex marriage, we hear about it in the news everywhere. But the law signed by Colorado's governor last week has garnered little attention, and it has some transformative possibilities that deserve lots and lots of attention. (Thanks to Bilerico's Alex Blaze for highlighting it -- but not a single comment to his post.) Colorado now has a simple form, with a menu of options, that allows any two unmarried people to designate each other as entitled to numerous legal consequences usually reserved to married couples.

The law creates a status called "designated beneficiaries." Even if you have heard about it, I bet you haven't heard the two most striking aspects of this law. First, the statute includes a standard form. No need to pay a lawyer to draw one up. Sign this form and you don't need a will or a health care power of attorney. You can be assured of hospital or nursing home visitation (not the right to be housed together in a nursing home -- maybe next time!) and the ability to make burial decisions.

Then, in a move I believe is original and unique, the form allows the two people to select which of the legal consequences available to them they actually want, and they don't require both people to pick the same consequences. Do you want the other person to make your health care and burial decisions but not to inherit your assets (maybe so they can go to your adult children....)? Do you want the person to qualify for employee benefits but not to make the decision about heroic life-prolonging measures? It's as simple as what line you initial on the form.

In my book, I come up with a registration system I call "designated family relationship." My idea was to substitute for conventional definition of family (which, in the absence of a spouse, is generally parent, child, siblings, and then more distant relatives) the person you would want to be considered your family member for purposes of healthcare and burial decisionmaking and inheriting in the absence of a will.

Colorado has now come close to that model.

I know this only happens in a state that won't pass marriage or civil unions for same-sex couples. Some marriage equality activists will snub their noses. Some may feel it's demeaning because it's open to any two unmarried people, not just gay couples. But for the whole LGBT community, this is a terrific outcome. It takes the emphasis off couples and puts it in the hands of people whose real lives don't always mirror heterosexual marriage. It also gives a set of choices to heterosexuals that makes marriage less of an imperative for them.

So I don't think of it as second best. I think of it as best for some people. When Colorado does allow same-sex couples to marry, it will already have this form of family recognition in place and so it will likely stay in place. The places that have same-sex marriage (or civil unions) now...well this approach isn't even on the table in those places. (Vermont and Hawaii have reciprocal beneficiaries law, but they are much more restrictive, they don't encompass as many legal consequences, and they don't afford options.)

You'll be hearing more from me about the Colorado law soon.

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.