Same-sex visitation rights: For the mandate

President Obama signed a directive that gives same-sex couples hospital visitation rights after learning of the tragic case of one couple.
Ellen Kahn
Family Project Director, Human Rights Campaign
Friday, April 16, 2010; 1:00 PM

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

Ellen Kahn, Family Project Director at the Human Rights Campaign, was online Friday, April 16, at 1 p.m. ET to discuss the decision and what it means for gay couples.

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Ellen Kahn: Good afternoon. I am hear today to discuss the announcement that President Obama made last nigh regarding non-discrimination in hospital visitation and medical-decision-making policies. I look forward to answering your questions.


Washington, D.C.: What type of paperwork will we need to make sure we have if we're ever in the situation where we need to use this new rule? Do we still need a power of attorney? What's the upshot?

Ellen Kahn: While this new rule will hold hospital's accountable for respecting the decisions of patients regarding who can visit, and who makes decisions on their behalf, it is important to put in place advanced medical directives--regardless of your marital status or other partner recognition that may apply in your state or jurisdiction. This will offer additional protection in the event that you are not able to communicate your wishes to hospital staff.


Silver Spring, Md: I was thinking about this issue today -- as a straight woman -- and really, who are hospitals to decide that only immediate families can visit or make decisions for any patient, gay or straight? What if I don't get along with whomever the hospital recognizes as my immediate family, and I choose a boyfriend, a neighbor, my minister or my 4th cousin-once-removed to be there?

I guess my question is, do you think this will cause hospitals to rethink their policies for everyone, not just the GLBT community?

Ellen Kahn: Absolutely. In fact, the language in the Presidential Memo applies everybody, not just the LGBT community, and it raises awareness that "next of kin," meaning those biologically related, are not necessarily the people whom we would choose to visit us or represent us. Again, we emphasize the importance of documenting your proxies and insuring that those closest to you, and perhaps your primary physician, are aware of your decisions.


Falls Church, Va.: What if state laws prohibit such visitation, i.e., set a class of permitted visitors that does not include gay partners? Obviously, a federal law would override such a state law, but can an executive order do so as well?

Ellen Kahn: There aren't any state laws that specifically exclude partners, in fact most states don't have a law that lists who can or cannot visit you. As the story the President cited in his memorandum, hospitals might not even respect your existing advanced healthcare directives. So the new federal regulations will ensure that hospitals have policies, regardless of state law, that allow patients to designate whomever they want to visit them. And the awareness this raises will, hopefully, help to change the culture as well.


Minneapolis, Minn.: Hi Ellen -- Thanks for taking questions today. As a gay person who has been in a committed relationship for over a decade now, this is of course welcome news to us. It seems, though, that Obama is content with these small gestures that are coming at periodic but regular intervals (protections for federal employees, baby steps towards repealing Don't Ask, Don't Tell, and now this development). Given the hostility of the previous administration towards the rights of GLBT people, it's hard to complain, but at the same time one wishes for bolder moves -- a more aggressive approach to repealing the Defense of Marriage Act, finally doing something on ENDA, for instance. I realize that you're not necessarily a political strategist, but what do you think?

Ellen Kahn: This is an important step, but it doesn't mean we don't keep working to accomplish our community's many goals -- ENDA, DADT repeal, DOMA repeal and many others. We should celebrate this advance and we should also keep pushing President Obama, Congress and our nation to move forward on the many other issues facing LGBT people.


Anonymous: From the article: Sebelius is ordering "new rules to ensure that hospitals "respect the rights of patients to designate visitors" and to choose the people who will make medical decisions on their behalf."

What happens if someone is already unconscious or otherwise incapacitated when brought in? Obama extends hospital visitation rights to same-sex partners of gays (Post, April 16)

Ellen Kahn: A good point. HHS will now have to put these regulations together, and that is an important question that we will have to work with them to answer. We have information on our website about low-cost and no-cost things you can do today to ensure that your wishes are followed in such a situation. We think this new directive is going to make hospital staff more aware and thoughtful on these issues, but we're going to keep working with HHS to make sure this is the strongest, best regulation possible.


Bowie, Md.: Are these rules the same for two elderly widows living as roommates?

Ellen Kahn: Yes, the rule allows a patient to designate whomever they want. This is very good for seniors, unmarried people, and others who would choose a non-relative for a variety of reasons. We think it's great that the memorandum helps these folks as well as LGBT people.


Arlington, Va.: How widespread was the denial of visitation problem? Is this more symbolism solving a problem that rarely occurs in the real world, designed more to fire up supporters in time for the campaign season?

Ellen Kahn: It's hard to know exactly how often this is a problem, but we hear about it from our membership a lot, and there have been several high profile, heart-wrenching cases, like the one of Janice Langbehn and Lisa Pond that inspired the President's action yesterday. Frankly, even one instance where a partner is kept from the bedside of the person he or she loves is too many.


Moral Authority?: I don't understand why pharmacists are allowed to withhold medication from a patient if they are morally opposed to a person using that medication (e.g., birth control pills or the morning after pill) but CATHOLIC hospitals are not allowed to uphold their morals. If the Salvation Army is allowed to base hiring on sexual orientation, then a private hospital should be able to exclude visitors based on sexual orientation if it is central to their belief system. And shouldn't this have gone through Congress, not a "mandate" by the president?

Ellen Kahn: This ruling applies to hospitals that take federal money, via Medicaid and Medicare, and that does include some Catholic hospitals, as well as nearly every hospital in America. We don't believe that any hospital should be able to discriminate against a same-sex couple, or anyone for that matter, with federal dollars.


Washington, D.C.: Is there a deadline on when the rules must be set forth by HHS to be implemented? This won't help if something happened tomorrow, right?

Ellen Kahn: That's right, HHS will have to issue a regulation, and solicit public comment, and we don't know yet what the timeline will be for that. Hopefully, this new rule will be in place within a few months.

_______________________ Kept From a Dying Partner's Bedside (The New York Times, May 18, 2009)


Fairfax, Va.: So does a form have to be filled out by a patient granting permission for said partner to be able to make decisions and visits? And does that apply to simply people living together but with no partner relationship?

Ellen Kahn: Those specific details will be set out in the regulation issued by HHS, and we'll work with them to make sure this is the strongest rule possible.


Helena, Mont.: I thought the president cited a case where a woman visiting in Florida had an aneurysm, had a DPA, but her partner was and her children were not allowed to see her before she died by the Miami hospital staff because they were a lesbian couple. So this directive will at least make the hospital honor DPA in cases where the couple is gay.

Ellen Kahn: That's correct -- the hospital in Miami did not honor Janice's advanced directive. However, the memorandum does two things -- it sets up a requirement for nondiscriminatory visitation and it reinforces existing federal regulations that require hospitals to respect advanced directives.


McLean, Va.: Interesting development, but strikes me as still too slow.

As a practical matter -- do these new rules only apply to gays or do they also apply to heterosexuals? Also, how do they determine precisely who has a serious enough relationship to be granted medical power of attorney? Its easy to designate if you are going into the hospital for a planned procedure, but what about in the case of a car accident where the hospitalized individual is unconscious? How will hospitals distinguish between someone just "dating" and someone who would have otherwise been married??

These new rules seem very ripe for abuse, as all compromises eventually are.

It would be far easier, on all, if the government simply got out of the business of telling individuals who they could fall in love with and marry.

Ellen Kahn: The new rules apply to everyone -- each patient will be able to designate his or her visitor. The medical power of attorney standards are still governed by state law, but the President's Memorandum (and, in fact, existing federal regulations) require hospitals to respect those powers of attorney. Unfortunately, in some cases, like the Miami one cited by the President and mentioned here before, hospitals have not respected those legal documents when presented by same-sex couples.


Elkridge, Md.: So, when exactly will this take effect? Is it just a suggestion until HHS makes a remark? And when it does come into effect, how can we make sure that the person we want is designated?

Ellen Kahn: This is a directive from the President, so HHS will take action. It's hard to say how soon this will all be finalized. The regulation that HHS puts forward will detail the mechanics of how a person designates his or her visitors.


State College, Pa.: As a long-time supporter of the HRC, I'm so glad something was finally done about this terrible situation. It makes absolutely no sense not to let people visit their loved ones in the hospital. So cruel.

As Dr. Martin Luther King, Jr. once said, "The arc of the universe is long but it bends towards justice."

Ellen Kahn: Thanks, State College!


Washington, D.C.: As a dues-paying member of HRC, I wanted to know if HRC is going to be placated by this "bore and snore" article which doesn't amount to a hill of beans in the quest for GLBT being treated like equal citizens in this country and drop the demand that DADT is repealed THIS YEAR! Obama extends hospital visitation rights to same-sex partners of gays (Post, April 16)

Ellen Kahn: We think this is an important step, but it does not take away from our ongoing efforts pushing Congress and the President to repeal DADT this year. However, I hope you'll consider that for Janice Langbehn and the many other people who find themselves on the wrong side of a hospital room door, this is a really critical advance.


Massachussets: I am a physician in an ER and live in a state where gays can marry. As far as I am concerned, anyone can visit or be with a patient as long as the safety of the patient and staff is not compromised.

Ellen Kahn: Thanks for such a great approach, Massachusetts. It's great that same-sex couples have the protection of marriage in your state. Unfortunately, too many doctors and other healthcare professionals have not shown the same respect to same-sex couples. This memorandum is going to help us address that problem.


Helena, Mont.: So, kneejerk reaction from J. P. Duffy of Family Research Council on NPR this morning to [the] effect that this is going to affect all the straight marriages in this country and that if gays want their life partners to be able to make medical decisions and visit them in the hospital, etc., then they can just lawyer up and make durable powers of attorney and health-care proxy. Will we next have Catholic hospitals refusing to care for Medicaid and Medicare patients because of this directive?

Ellen Kahn: I certainly hope that Catholic hospitals do not take that approach. I'm not sure how this will hurt anyone's marriage in the least -- what it will do, is help a lot of same-sex couples, and others, be with the people they love in a crisis.


Ellen Kahn: Looks like that's our time for today -- thanks everybody!


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