This month, the LGBT community saw another pivotal advancement toward equality. On Jan. 18, the Obama administration’s new hospital-visitation regulations went into effect. Under the new regulations, patients being treated at nearly all hospitals, specifically those that accept Medicare and Medicaid, will now be allowed to make their own decisions as to who has visitation rights and who can make medical decisions on their behalf — including their same-sex partners.
The Secretary of Health and Human Services has added these new regulations to the already-existing requirements that hospitals and critical-access hospitals must meet in order to participate in the Medicare and Medicaid programs. Under these new regulations, hospitals are obligated to have written policies and procedures regarding patients’ visitation rights. They must inform each patient, or his or her representative, of the patient’s visitation rights, subject to his or her consent, to receive the visitors whom he or she designates, be it a spouse, family members or a friend, and of the right to withdraw or deny such consent at any time. Moreover, hospitals are not be permitted to restrict, limit or otherwise deny visitation privileges on the basis of race, sex, gender identity, sexual orientation or disability. Officials said the new visitation regulations would also benefit, for example, childless widows or widowers who may seek the care and companionship of an unmarried partner or friend. The regulations also apply to members of religious orders.
This is an important victory for many who have suffered the tragedy of being denied visitation to their partners. Can you imagine not being allowed to see a loved one during his or her final hours? This injustice has been documented numerous times and is exactly what the new proposed regulations hope to quash. Previously, the regulations stated that visitation was only granted on the grounds of marriage or blood relation. President Obama told the public, after the announcement, that the LGBT community is uniquely affected by hospital-visitation rights and “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.”
One story inspired Obama to enact the regulation. For nearly four years, Janice Langbehn had been fighting for hospital-visitation regulations to be expanded beyond the traditional heterosexual-marriage model. In 2006, Langbehn’s partner of 18 years, Lisa Pond, collapsed from an aneurysm during a Florida vacation. The 39-year-old was taken to a Miami trauma center, where she died. Despite Langbehn’s efforts to persuade hospital officials to let her and their adopted children, Danielle, 15; David, 13; and Katie, 12 to visit Pond, she passed away without the comfort of family around her. Langbehn, represented by Lambda Legal, sued the hospital for the tragedy they faced. But the court dismissed the lawsuit, reasoning that no statute existed to protect the couple — despite the fact that Langbehn held Pond’s durable health-care power of attorney.
In April of last year, Obama directed the Department of Health and Human Services to resolve issues affecting LGBT families, which drafted proposed regulations. Obama also called Langbehn directly to convey his sympathies for her loss and the treatment of their family.
Lambda Legal has noted that some important protections still need to be added to the new regulations, such as who may visit when an incapacitated patient has not designated someone to make decisions. Also, there is still a need for an appeals procedure for visitation denials, and for hospices and nursing homes to have LGBT-specific nondiscrimination policies in place.
It is important to understand your hospital-visitation rights and to talk to your doctor about who you want to have access to you in a medical emergency. Moreover, contact your attorney and have him or her draw up a hospital-visitation authorization, a living will and a health-care proxy. These documents allow you to designate who can visit you in the hospital, as well as designate who will make health-care decisions should you become unconscious or unable to communicate them yourself. Under most state laws, LGBT partners are not considered family: These documents outline what family means to you.
Also, consider that even if you know your local hospital’s policy, emergencies can happen when traveling. Traveling to another state is one instance when the need for living-will and health-care proxy documents is crucial. It is important to remember that each state, each hospital and each health-care provider has a different perspective about gay rights. Ultimately, you must have all legal documents in place and accessible in the event that you or a loved one needs hospitalization.
Angela Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real-estate law and civil rights. Her website is www.giampololaw.com and she maintains a blog, www.phillygaylawyer.com. Send Angela your legal questions at [email protected].