Late Thursday, April 15, Lambda Legal learned that, after signing a memo directing the Secretary of Health and Human Services to take steps to address hospital visitation and other health care issues affecting LGBT families, President Barack Obama called Lambda Legal client Janice Langbehn to express his sympathies for the tragic loss of her partner Lisa Pond and the treatment she suffered.
"The steps that President Obama outlined tonight are a great leap forward in addressing discrimination affecting LGBT patients and their families," said Kevin Cathcart, Lambda Legal Executive Director. "These measures are intended to ensure that no family will have to experience what the Langbehn-Pond family did that night at Jackson Memorial Hospital. We are so proud of Janice and her family she stood up and told her story and it made a difference."
Last September, a federal district court rejected Lambda Legal's lawsuit filed against Jackson Memorial Hospital on behalf of Janice Langbehn, ruling that no law required the hospital to allow her and their three children to see her partner. Langbehn and the children were kept apart from Pond by hospital staff for eight hours as Pond slipped into a coma and later died. After that Lambda Legal worked with other LGBT organizations and officials at Jackson Memorial Hospital to change hospital policies on visitation and respecting the wishes of same-sex couples and their families.
The President's memorandum to the Secretary of the Department of Health and Human Services includes the following: HHS should promulgate rules for hospitals that receive Medicaid or Medicare funds that require them to respect the rights of patients to designate visitors. HHS should also take steps to ensure that such hospitals have adequate policies to respect the legal documents that some patients have designating who can make decisions for them if they are incapacitated. Finally, the President directs HHS to report back to him in 180 days with additional recommendations about actions it can take to address hospital visitation, medical decision-making and other health care issues that affect LGBT patients and their families.
"It was very rewarding to hear 'I'm sorry,' from the President because that's what I have wanted to hear from Jackson Memorial since the night Lisa died, " said Janice Langbehn. "I hope that taking these steps makes sure that no family ever has to experience the nightmare that my family has gone through."
The White House
Office of the Press Secretary
Presidential Memorandum - Hospital Visitation
MEMORANDUM FOR THE SECRETARY OF HEALTH AND HUMAN SERVICES
SUBJECT: Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies
There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital. In these hours of need and moments of pain and anxiety, all of us would hope to have a hand to hold, a shoulder on which to lean -- a loved one to be there for us, as we would be there for them.
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 onsequences. 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.
Many States have taken steps to try to put an end to these problems. North Carolina recently amended its Patients' Bill of Rights to give each patient "the right to designate visitors who shall receive the same visitation privileges as the patient's immediate family members, regardless of whether the visitors are legally related to the patient" -- a right that applies in every hospital in the State. Delaware, Nebraska, and Minnesota have adopted similar laws.
My Administration can expand on these important steps to ensure that patients can receive compassionate care and equal treatment during their hospital stays. By this memorandum, I request that you take the following steps:
1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. 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. 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. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient's care or treatment.
2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102 ( a ) , promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.
3. Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
You are hereby authorized and directed to publish this memorandum in the Federal Register.
Statement of Congresswoman Tammy Baldwin On President Obama's signing of a presidential memorandum regarding the visitation rights of hospital patients and the ability to designate surrogate decision makers in the case of emergencies
April 15, 2010
"President Obama's decision to direct the Secretary of Health and Human Services to take steps to ensure that hospitals participating in Medicare or Medicaid respect the rights of patients to receive visitors and designate others to make decisions about medical care in the case of an emergency is the right one. It follows the lead of many states and makes a strong statement about who we are as a nation and what we value.
No one should face the distress of lying ill or injured in a hospital bed with the loved one you designate barred from your bedside for any other than a compelling medical reason. For too long, such access has been arbitrarily denied many individuals, most especially to gay and lesbian Americans.
President Obama's action tonight puts us another step closer toward our goal of equal rights for all Americans and I applaud his decision."