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Just this week President Obama sent a memo to the Department of Health and Human Services asking that there be a rule change that will require hospitals that accept Medicare and Medicaid payment to let patients choose which persons, including gay and lesbian partners, can visit them and help make critical health decisions. We asked Jeff Krehely, who is the Director of the LGBT Community and Research Project at CAP to come walk through what this means for the LGBT community.
What kind of rights do nonmarried partners have now when it comes to visitation in the hospital and decision making for medical issues?
Well, it kind of depends on where you are, actually. A lot of these policies to date have been set at the state level, and we kind of see three different classes of states, if you will. There’s a top tier that’s very inclusive, recognizes same-sex marriages, domestic partnerships, explicit same-sex relationships, that people in those relationships have the same rights that people who are in opposite-sex married relationships have. Then there’s a second class of states where they’re not explicitly recognizing same-sex relationships. There’s a general category where you can appoint a friend to make decisions for you and have visitation rights. And then there’s a third class where it’s very strict, it’s very much based on biological and legal relationships. It has to be a very specific kind of relationship for you to have any kind of access or medical decision making.
The other strange thing about these policies is that implementation of them varies from facility to facility. So a hospital in Massachusetts, for example, which has really good policies, if the front-line administrative staff isn’t educated about the policies, they could reject a same-sex partner out of hand because they don’t know what the law is. So there’s an education factor here that has to go along with the president’s new directive.
In theory, what would these new rules allow for?
It explicitly calls for a nondiscrimination statement in access and medical decision making, and it includes the categories of sexual orientation and gender identity. So even if a gay man has to go to the hospital and he’s with his gay friend, the front-line staff can’t just be like, “Oh. I’m weirded out by gay people so you can’t go back there and talk to your friend while he’s in this condition.”
Which right now they could, right?
Right, exactly. And they have. This all stems form a case in Florida, which is actually one of the midtier states—it’s in that group where there’s some good laws. And they didn’t allow a domestic partner and the children of this couple back to see a woman who had a stroke and later died. So there was this 15 hours of anguish and separation while this woman was on her own, hooked up to medical equipment, and her partner and her kids couldn’t get back to say goodbye.
And this was in The New York Times today, and President Obama actually called the surviving partner yesterday when he was on Air Force One to say that he was going to send this memo over to HHS.
And I think now that the president’s memo really raises the visibility of this issue, and I think the fact that it is now linked to federal funding somehow that I think hospitals will be much more apt to do good enforcement and training. I’m not sure what kind of sanctions will be involved here, but just the fact that there is a linking to a federal funding source I think will get the attention of hospital administrators and make sure that they are actually following these rules.
What does this mean for the LGBT community?
Well, there are a couple things. From a very practical, physical, medical position, it could really mean that the person who knows a patient’s medical history—what medications they’re taking, what other medical conditions they have—that person will now be able to get access to doctors and nurses and other care providers. And this is going to give better treatment to the person who’s in the hospital.
And for more of an emotional perspective, too, if you’re sick and you don’t know what’s really going on, it’s very scary, and you can’t get any kind of access to the person who is most important to you, who you love, your kids. You can’t see them because of these laws. There’s a lot of comfort for the parent if you can be united with those folks. And vice versa. The people in the waiting room are now able to go back, see the person, communicate with him or her, and actually be involved in their treatment and be support for that person.
Listen to the full audio for more analysis on how the Obama administration is doing on LGBT issues in general and the health directive in particular: