By Robert J. Tyler III, Esq.
On April 15, 2010, President Obama issued a memorandum requiring all hospitals that participate in Medicare and Medicaid (nearly all hospitals) to offer visitation rights for same-sex partners and spouses. The Presidential memo also requires the participating hospitals to respect the right of a patient to designate his or her same-sex partner or spouse as a durable power of attorney and health care proxy. These individuals are also to enjoy the same visitation privileges as immediate family members. Furthermore, participating hospitals may not deny visitation privileges on the basis of sexual orientation. These visitation rights also apply to unmarried heterosexual couples.
On September 7, 2011, the Director of the Department of Health & Human Services issued a nationwide directive implementing the policies outlined in the Presidential memo. Specifically, the directive lays out the following requirements regarding patient representation:
- Notice of the patient’s rights must be given to the patient or the patient’s representative;
- Patients (or their representatives) have the right to participate in the development and implementation of their plan of care;
- The right to make informed decisions regarding the patient’s care may be exercised by the patient’s representative. This includes being informed about the patient’s health status, being involved in care planning and treatment, and being able to request or refuse treatment;
- The patient has the right to formulate an advance directive, which may include the designation of a health care proxy; and
- A family member or representative of the patient’s choice must be promptly notified of the patient’s admission to the hospital.
The hospitals must give deference to the patient’s wishes concerning his or her representative, whether expressed in writing, orally, or through other evidence.
In regards to visitation rights, participating hospitals are required to:
- Provide notice to patients or their representativesof their visitation rights, including the right to receive, subject to the patient’s consent, visitors designated by the patient, including but not limited to a spouse, domestic partner (including a same-sex domestic partner), another family member, or friend. The notice must also advise of the patient’s right to withdraw or deny consent at any time;
- Not restrict, limit, or deny visitation privileges based on race, color, national origin, religion, sex, gender identity, sexual orientation, or disability; and
- Ensure that all visitors enjoy full and equal visitation privileges consistent with the patient’s preferences.
With these new orders in place, same-sex couples now have the same visitation rights as traditional married couples.
It is important to note that in the absence of an advance directive designating a health care proxy, the wishes of the patient may not be able to be carried out, or even known. For this reason, we advise all individuals for whom these policies may be relevant to speak with an attorney about designating a health care proxy as a precautionary measure.