LGBT patients will have the right to determine who can visit them, including their domestic partners, according to new rules regarding hospital visitation rights set forth by U.S. President Barack Obama. However, the rules do not completely protect the rights of domestic partners in some traumatic circumstances.
A regulation published Nov. 17 by the Department of Health and Human Services will require any hospital that receives federal Medicare and Medicaid funding to allow patients the right to decide who visits them. The regulation also prohibits discrimination against visitors based on their gender identity or sexual orientation (along with other protected classes). Hospitals must also now inform all patients of their right to select visitors.
In April, Obama wrote a memo to the DHHS: "It should be made clear that designated visitors… should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. Every day across America, patients are denied the kindness and caring of a loved one at their sides-whether in a sudden medical emergency or a prolonged hospital stay."
Patients in Michigan, who have had the freedom to choose visitors guaranteed since the early 90s, can now rest assured that right is theirs no matter where in the country they travel. However, the policy does not automatically protect partners and family members when a patient is incapacitated and unable to communicate his or her wishes.
"Don't rely on the government to come up with all the solutions," said estate law attorney Michael Witzke of Witzke Berry PLLC in Bloomfield Hills. "Take advantage of the rules we have now. The people you care about are the ones who are going to be taking care of you in an emergency. That's why you should set up proper legal documentation."
The regulation allows gay and lesbian partners to determine visitors for an incapacitated patient and states that hospitals should ask for legal documentation of a relationship only if a patient cannot speak and there is a dispute among parties.
Witzke said that individuals can protect the rights of a partner to make decisions and to be able to receive information about medical care if they have an attorney set them up with a patient advocate designation and a HIPAA medical privacy release. He also said that parents should consider a delegation of parental powers form. This is useful for any parent with a child who is over 18 but would still like their parent to have control in an emergency situation.
"Patients' families have denied significant others from being in the room. Unless documentation is in place they can still be shut out of their loved one's care," Witzke said.
Jay Kaplan, staff attorney with the Michigan ACLU LGBT Project said that his organization has not received many complaints about hospital visitation issues.
"Where we have heard complaints is where family members have refused to allow a patient's partner to visit or have chosen to disregard what the patient has indicated in their Durable Power of Attorney for Medical Care document regarding visitation," Kaplan said. "I am aware of one particular incident, where a lesbian patient's partner was not informed about the progress of the patient's surgery by the hospital, even though she was the listed contact person on the Power of Attorney."
Kaplan praised the regulation as "a good first step," and added that it can help improve life for people in more than just the emergency room setting. "I believe that this rule could have a large impact on LGBT patients living in nursing homes and assisted care facilities (that accept Medicare payments), who may have been forced to go back into the closet out of fear and are afraid or concerned that their visitation preferences would not be honored."
The new regulation takes effect Jan. 18, 2011.
