On April 15, 2010, President Barack Obama gave the LGBT community a seeming boost, but some in the community seem to be celebrating the wrong victory. As it has become clear from conversations with several clients who wished to understand exactly what happened, there are misunderstandings in this victory.
The President’s directive to the Secretary of Health and Human Services will make it clear, upon the Secretary creating specific rules, that all hospitals receiving reimbursement for Medicare and Medicaid must honor advance healthcare directives such as healthcare powers of attorney. In other words, there is NO automatic right for partners to visit each other in the hospital under this directive. There is NO automatic right for partners to make medical decisions for each other under this directive. And there is NO automatic right for partners to exclude unwanted family members under this directive.
What this memorandum from the President states is that if partners have gone through the process of creating advance healthcare directives then hospitals receiving federal support through the Medicare and Medicaid programs must honor those legally binding documents. The President wrote:
“Yet every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides — whether in a sudden medical emergency or a prolonged hospital stay. Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives — unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.
For all of these Americans, the failure to have their wishes respected concerning who may visit them or make medical decisions on their behalf has real consequences. It means that doctors and nurses do not always have the best information about patients’ medications and medical histories and that friends and certain family members are unable to serve as intermediaries to help communicate patients’ needs. It means that a stressful and at times terrifying experience for patients is senselessly compounded by indignity and unfairness. And it means that all too often, people are made to suffer or even to pass away alone, denied the comfort of companionship in their final moments while a loved one is left worrying and pacing down the hall.”
Eloquent, yes, but the substantive part of the President’s memorandum and his order to the Secretary: “It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.” This means that hospitals can not deny visitation to a healthcare power of attorney agent, provided they have a validly executed and legal power of attorney document. It certainly does not mean that partners are given visitation rights just because they are partners.
There was another clause in the President’s memorandum that was also encouraging, but it can also be misconstrued. “You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.” In other words, hospitals may not deny visitation to anyone based on race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, but they can still deny visitation if the person is not the healthcare power of attorney agent. However, they can not admit some people and not others purely because of those prohibited motives.
While the President’s orders to the Secretary of Health and Human Services are encouraging and are certainly to be celebrated, they are most certainly not an excuse for failing to get a healthcare power of attorney in place. In fact, the President’s message is simple: If you get a healthcare power of attorney in place, then we’ll back it up at hospitals.