Late last night, President Obama issued a memorandum instructing the Department of Health and Human Services to develop regulations requiring all hospitals that receive federal Medicare and Medicaid funding to end discrimination in hospital visitation.
The new rules will stipulate that all patients have the right to designate people who can visit and consult with them during medical emergencies and that those individuals have the same rights that immediate family members now enjoy. Hospitals may also “not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability” and will have to honor the visitation rights of “individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies).”
“There are few moments in our lives that call for greater compassion and companionship than when a loved one is admitted to the hospital,” Obama wrote in the memo to HHS. “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”:
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 [c]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.
Currently, several states, including California, Delaware, Nebraska and Minnesota, and North Carolina allow patients to designate visitors, but the new rules “could require substantive changes to the visitation policies of hospitals in at least twenty-five states whose laws do not currently require the extension of visitation rights.”
Since Obama’s memo will have no immediate effect, “the rule-making process could be a lengthy one, requiring the creation and publication of new proposals, a period for public comment and additional approvals,” Box Turtle Bulletin notes. “The weakness of this process is that it could be overturned by a future administration, but that overturning would also have to undergo the same lengthy process — creation and publication of a new set of regulations, public comment period, etc. While it is not as immediate as an Executive Order, it is much more robust and durable.”
The memo also instructs HHS to provide additional recommendations on what can be done “to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families.”