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New Federal Hospital Visitation Regulations for LGBT go into Effect on Jan. 18, 2011

January 15th, 2011

medicalOn January 18, 2011, new hospital visitation regulations go into effect that require all hospitals participating in Medicaid and Medicare programs to permit patients to designate visitors of their choosing and prohibit discrimination in visitation based on a number of factors, including sexual orientation and gender identity.

The new regulations are a result from President Obama’s presidential memorandum in April 2010 directing the Department of Health and Human Services to develop regulations protecting hospital visitation rights.

Regulations require hospitals (from HRC’s Hospital Visitation Guide):

  • to inform each patient of his or her right to receive visitors whom he or she designates, including a domestic partner
  • to not restrict or limit visitation rights based on sexual orientation and gender identity, among other factors
  • must ensure that all visitors have full and equal visitation rights, consistent with a patient’s wishes.

To learn more visit the Human Rights Campaign Hospital Visitation Guide for LGBT Families>>

While these new federal regulations are a great step forward for LGBT hospital visitation equality it’s important to note there are other medical decision making areas that are not protected unless an individual has prepared the necessary legal documents.

Many state laws governing medical decision making defaults to biological family members or marital laws. Since there is marriage inequality in most of the U.S. LGBT individuals are not protected. Even if you are not in a committed relationship, you want to make decisions about your own life and future without unwanted intrusions from others. By planning now you can feel comfortable that you, your family and your future are taken care of exactly the way you envision.

If you want to designate a person to make health care decisions for you if you are unable to do so or state your wishes regarding the withholding or withdrawal of life-sustaining procedures under certain circumstances you will need to prepare an Advance Directive for Healthcare or Living Will.

Not planning, means letting someone else plan for you. LGBT individuals need to be proactive to ensure that their plans for the future reflect their own wishes and are not dictated by laws that do not fit your life and relationships or individuals who are not involved in your life and relationships.

Do not put off preparing legal documents as we never know what can happen. LegalOut can help you avoid putting off creating legal documents. LegalOut’s online resource center provides the LGBT community with affordable legal document solutions.  We provide easy-to-use tools for customizing your documents online, in the privacy of your own home, at your own pace and provides hundreds of do-it-yourself legal documents including living wills, domestic partnership agreements, power of attorney documents, last will and testament, and many others.

By planning now you can feel comfortable that you, your family and your future are taken care of exactly the way you envision.

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Same-sex couples deserve visitation rights, hospitals told

May 7th, 2010

From the American Medical News:

By Doug Trapp, amednews staff. Posted May 7, 2010.

Washington — Same-sex couples and other unmarried partners will have their hospital visitation rights protected by forthcoming federal regulations, according to an April 15 memo from President Obama.

Gay rights groups said the announcement was long overdue. “Many same-sex couples are simply at the mercy of hospital personnel,” said Tara Borelli, staff attorney at Lambda Legal, a nonprofit organization supporting the civil rights of gay, lesbian, bisexual and transgendered people. “Nobody is hurt by allowing that access.”

Obama directed the Dept. of Health and Human Services to issue rules stating that people named in legally valid advance directives and through powers of attorney have the same rights as immediate family members of hospitalized patients when it comes to making health care decisions. Hospitals must also respect patients’ rights to designate visitors.

The rules will apply to all hospitals participating in Medicare and Medicaid, which is about 90% of U.S. hospitals, according to Rebecca Fox, executive director for the National Coalition for LGBT Health.

Obama said denying loved ones’ access to each other in hospitals during serious health situations has consequences. Physicians and nurses don’t always have the best medical information as a result, and people sometimes die alone while a loved one is “left worrying and pacing down the hall,” he wrote.

No reliable estimates exist on how often gays and lesbians are denied access to their hospitalized partners. Dozens of known cases each year could mask many more unreported incidents, Borelli said.

The American Hospital Assn. issued a brief statement saying that “we will look forward to details of the new regulations as well as direction on coordinating with states’ laws.” The Federation of American Hospitals offered no comment.

Obama said he was moved to act in part by the story of a lesbian couple who was preparing to take a cruise in 2007 with their three children. One of the women, Lisa Pond, collapsed from a brain aneurysm and was rushed to Jackson Memorial Hospital in Miami. She died the next day. Janice Langbehn, Pond’s partner of nearly 20 years, was denied access to Pond before she died, but Pond’s sister was not. Langbehn unsuccessfully sued the hospital.

Jackson Health System in Miami — which includes the hospital — has since emphasized same-sex couples’ rights during new employee training, said Jason Schneider, MD, immediate past president of the Gay and Lesbian Medical Assn. and assistant professor of medicine at the Emory University School of Medicine. However, most states do not legally recognize gay marriages, so some hospital staff don’t see same-sex couples as having the same rights as heterosexual married couples, he said.

AMA policy supports hospitals providing the same visitation rights to same-sex couples as they do heterosexual couples.

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President Obama Orders Hospital Visitation For LGBT Families

April 23rd, 2010

obamaPresident Obama signed a memorandum that aims to protect the hospital visitation and healthcare decision-making rights of lesbian, gay, bisexual and transgender (LGBT) people.

The memorandum directs the Secretary of Health and Human Services (HHS) to enact regulations that require all hospitals receiving federal Medicare and Medicaid funding to comply with a patient’s right to determine who may visit them, and to prevent hospitals from discriminating based on sexual orientation and gender identity, as well as all federally protected classes.

In addition, the memorandum calls on the Secretary to issue new guidance and provide technical assistance to hospitals to help them comply with existing federal regulations that require them to respect individuals’ advanced healthcare directives and other documents establishing who should make healthcare decisions for them when they are unable to do so. This is an important directive, as it will help reinforce the current law that, if a same-sex spouse has been granted power of attorney or has been designated by the patient as having visitor rights, such rights must be respected.

The memorandum is a positive step forward to protect LGBT families, however, it’s important to note the LGBT community still needs to take proactive steps to ensure that the people we choose may visit us and make medical decisions on our behalf in times of emergency by creating the necessary legal documents that must be respected by hospital staff.

Without any legal documents it will be harder to protect your wishes and be able to direct who you want to visit you in the hospital in case of an emergency.

LegalOut provides the following legal documents to help you protect your wishes. For more information visit LegalOut - Protection 101 or click on the legal documents below for more details:

Here is the full text of the memorandum:

Presidential Memorandum - Hospital Visitation

MEMORANDUM FOR THE SECRETARY OF HEALTH AND HUMAN SERVICES

SUBJECT: Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies

There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean — a loved one to be there for us, as we would be there for them.

Yet every 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.

Many States have taken steps to try to put an end to these problems. North Carolina recently amended its Patients’ Bill of Rights to give each patient “the right to designate visitors who shall receive the same visitation privileges as the patient’s immediate family members, regardless of whether the visitors are legally related to the patient” — a right that applies in every hospital in the State. Delaware, Nebraska, and Minnesota have adopted similar laws.

My Administration can expand on these important steps to ensure that patients can receive compassionate care and equal treatment during their hospital stays. By this memorandum, I request that you take the following steps:

1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. 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. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national

origin, religion, sex, sexual orientation, gender identity, or disability. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient’s care or treatment.

2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients’ advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients’ representatives otherwise have the right to make informed decisions regarding patients’ care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.

3. Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decision making, or other health care issues that affect LGBT patients and their families.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

You are hereby authorized and directed to publish this memorandum in the Federal Register.

BARACK OBAMA

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