Kathleen Sebelius

When President Obama signed a memorandum this month, calling for an end to discrimination against gays and lesbians in hospital visitation policies, many unmarried LGBT people assumed that meant hospitals would no longer be able to bar them from being with their partners during a time of medical crisis.

But not all presidential memoranda are created equal: Some go into effect immediately; some require months of rule-making bureaucracy and are subject to public comment.

The April 15 memorandum to the Secretary of the Department of Health and Human Services Kathleen Sebelius requests HHS “ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors” is among the latter.

And the presidential memo President Obama signed last June, asking the Office of Personnel Management to report back in 90 days with recommendations for “measures that can be taken…to provide benefits to same-sex domestic partners of Federal Government employees”? A spokesman for OPM says those recommendations were submitted to the president but are not available to the public.

Why must some memoranda go through months of public comment and rule-making while others go into effect immediately and why are the results of others not made public at all?

Randolph D. Moss, Assistant Attorney General for the Office of Legal Counsel under President Clinton, says “it depends on what the President is doing and on the underlying law.”

“A memorandum blocking assets held by terrorist groups, for example, can go into effect without further legal proceedings because the statute gives the President that authority,” he explained. “But, at other times, the underlying statutory authority requires that a change in policy go through additional steps, such as notice and comment under the Administrative Procedure Act.”

“The President’s directive on hospital visitation will affect the rules that govern at hospitals that receive Medicare and Medicaid funding,” noted Moss, “so HHS will need to propose a rule change.”

“As the presidential directive makes clear, among the questions that HHS will need to consider is how visitation might affect patient care and treatment,” said Moss. “Other questions might include how the rule will be enforced.”

HHS will also have to answer the question of how to define “hospital” and whether that definition includes assisted living facilities. Luis Rosero, deputy assistant secretary in the Office of Public Affairs at HHS, said that definition will almost certainly come up during the comment period and he encourages anyone with opinions about that to submit a comment then.

First, however, HHS must write a “proposed rule” for implementation of the directive and publish it in the Federal Register. Then, the public and interested stakeholders will have 60 days during which to submit their comments on the proposed rule. After the comment period closes, HHS will write the final rule—a process that takes at least several more months—and then the rule goes into effect.

In the meantime, said Rosero, hospitals are essentially on notice that this is what the Obama administration intends to do. The memo instructs HHS to ensure that hospitals receiving federal funds not deny visitation based on sexual orientation or gender identity, along with the usual categories of non-discrimination.

As for designating the recommendations sought through a presidential memorandum as “privileged” information, said Moss, “that’s not unusual.”

Last June, President Obama’s memorandum directed federal agencies to determine what benefits they might be able to make available to the domestic partners of gay federal employees under existing laws. It directed the Office of Personnel Management to prepare a report on the results of their findings, along with recommendations “of any additional measures that can be taken.”

John Marble, public affairs specialist for the Office of Personnel Management, headed by openly gay appointee John Berry, said those recommendations are “privileged material” and not available to the public.

Marble did not explain, but Moss said the designation “doesn’t strike me as improper.”

“If you make [such recommendations] public immediately, before the president and his staff have a chance to look at and consider them,” said Moss, “you may undermine the ability of people in the Administration to have a complete and candid discussion about them.”

“That doesn’t mean that the Administration will not make its views public,” Moss added, “just that there is a need for some confidential internal discussion first.”