Tara Borelli

Equality in hospital visitation policies is not a controversial issue. That’s what seems apparent from the 427 comments received during the just ended public comment period on the proposed regulation to implement President Obama’s hospital visitation memorandum.

The April 15 memorandum called for an end to discrimination against gay couples in the visitation policies of hospitals receiving federal Medicaid and Medicare funding.

While the U.S. Department of Health and Human Services can provide no breakdown of how many comments were for or against the proposed change, a random search of more than 10 percent of the comments found complete support for the requirement—and considerable incredulity that it is even necessary to establish such a rule.

But it is necessary, as illustrated by one commenter who told of being in a serious automobile accident just last October. He said his partner was barred from being with him, even though the partner had a health power of attorney. It was only after the partner, following a shift change in the nursing staff, identified himself as the unconscious man’s brother that he was allowed in.

Lambda Legal Defense and Education Fund and two other groups have made known they believe some changes are warranted in the proposed language, published in June, particularly with respect to instances where the patient is incapacitated. But there’s no guarantee HHS will adopt Lambda’s suggestions, and actual enforcement of the president’s directive is still months—and another public comment period—away.

HHS’s Office of Clinical Standards and Quality will make the decision on final language of the hospital visitation rule, said Donald McLeod, an HHS spokesperson. It will do so based on the comments made by the public, he said, “but that is only a part of the process.”

“We look at all available evidence,” said McLeod, noting that it can include things such as journal articles.

In its August 27 letter, submitted for the hospital visitation policy comment period, Lambda, the Gay and Lesbian Medical Association (GLMA), and the National Health Law Program (NHeLP), a public interest law firm, directed HHS to a monograph produced this year by the Joint Commission. The Joint Commission is a private, not-for-profit organization that operates an accreditation service for thousands of hospitals nationwide.

The Joint Commission publication suggests hospitals define “family” to “explicitly include any individual that plays a significant role in the patient’s life such as spouses, domestic partners, significant others (of both different-sex and same-sex), and other individuals not legally related to the patient.” The Commission advises hospitals to “Use this expanded definition in all hospital policies, including those addressing visitation, access to chosen support person, identification of surrogate decision-makers and advance directives.”

The proposed rule that HHS published in the Federal Register with little fanfare June 28 does not currently make explicit this definition of family. Its language distinguishes between “immediate family members” and “visitors designated by the patient.” But it does make clear that the visitation privileges available to the “visitors designated by the patient” should be “no more restrictive than those that immediate family members would enjoy.”

Interestingly, although the clear purpose of the president’s memorandum was to end discrimination against LGBT families in regards to hospital visitation rights, the 6,200-word proposed rule never mentions the word “gay,” mentions “same-sex domestic partner” only three times, and mentions “sexual orientation” only four times. In fact, while LGBT activists hailed the president’s directive as a dramatic step toward equal protection of the law, to the uninitiated reader, the proposed rule might very well read like an unremarkable clarification “to ensure the visitation rights of all patients,” as the summary states.

“While the proposed new rules are certainly good news, important clarifications are needed,” said Tara Borelli, a Lambda staff attorney who was principle author of the comments to HHS.

One concern Lambda, GLMA, and NHeLP express is that the proposed rule allows that there may be “rare cases” in which hospitals should have the right to require a visitor to produce “written documentation,” such as durable powers of attorney and healthcare proxies, from some visitors, such as LGBT partners.

“We believe that, at a minimum,” reads the proposed rule, “a hospital … may not require documentation where the patient has the capacity to speak or otherwise communicate for himself or herself; where patient representation automatically follows from a legal relationship recognized under State law (for example, a marriage, a civil union, a domestic partnership, or a parent-child relationship); or where requiring documentation would discriminate on an impermissible basis.”

“In all other cases,” said Lambda, “verbal representation of a family relationship recognized under the law of any state should suffice—as it does currently for all incapacitated heterosexual patients whose husband, wife, parent or adult child seeks access to the hospital bedside.”

The proposed rule acknowledges that it is important for patients who are incapacitated to have a representative “who is likely to be especially familiar with the patient.” But the Lambda coalition says the rules do not adequately “address this common scenario” as it relates to LGBT patients and that they “definitely should.”

“The Proposed Rules are silent regarding the circumstance in which LGBT patients and their families are perhaps most vulnerable—when a patient is incapacitated and has not previously designated in writing a health care agent or representative,” said the groups. “LGBT patients far too often experience discriminatory visitation denials even when they have designated an agent in writing, and patients who have not done so—a common circumstance—are even more vulnerable.”

It was this scenario that President Obama referred to when he issued his memorandum last April. He cited the experience of a Washington State couple on vacation with their children in Florida in 2007. While there, one of the women, Lisa Pond, collapsed with an aneurysm and was taken by ambulance to Jackson Memorial Hospital in Miami. When her partner, Janice Langbehn, arrived at the hospital with their children, the hospital refused to let them see Pond. The hospital continued to refuse visitation even after Langbehn had a friend fax Pond’s health proxy to the hospital.

The Lambda coalition says the rules should be revised to ensure written documentation of a relationship is not required when a visitor “identifies herself or himself as the patient’s adult partner, parent, child, or as playing a significant role in the patient’s life.” And the coalition says written documentation should not be required when “patient representation automatically follows from a legal relationship recognized under the laws of any state.”

The Lambda coalition submitted its 26-page comment to HHS on the last day of public comment, August 27. As of Tuesday, it was still not posted on the HHS site where the public comments can be read. The letter can be viewed, however, at lambdalegal.org.

Now that the comment period has closed, HHS will write a “final rule”—a process that takes several months. The final rule is then published and another public comment period ensues, according to McLeod.

“Finally, after a couple more months,” said McLeod, “we will post a final decision.”