FAQ: DHHS Requires Hospitals to Grant Equal Visitation Rights to All Families

October 7, 2010

At NCLR, we’re committed to fighting for your rights, and keeping you informed of all the legal decisions and key policies that impact your lives, as well as the lives of your family and friends.

You may have noticed that our legal team over the past few months has busily been providing you with comprehensive analysis of important legal developments, breaking down and interpreting complicated issues for you, and, in the process, answering your questions about how the issues affect your lives.We couldn’t do any of our work without your support.

This week, we’re explaining how you and your loved ones are affected by new federal regulations that would require nearly all hospitals to grant equal visitation rights to all types of families, not just those based on marriage or biology.

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In solidarity,

Kate Kendell
Executive Director

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DHHS Requires Hospitals to Grant Equal Visitation Rights to All Families

On April 15, President Barack Obama issued a memo directing the Department of Health and Human Services to adopt new regulations that would require nearly all hospitals to grant equal visitation rights to all families, not just those based on marriage or biology. In the memo, President Obama specifically talked about same-sex couples as an example of family members who have been unfairly kept away from their partners when one is hospitalized. The President also said that he was taking this step in part because of what happened to Janice Langbehn and Lisa Pond, who were kept apart by a Florida hospital after Pond collapsed due to an aneurysm in February 2007. Pond died without her partner or their children being permitted to visit her.

What did President Obama’s April 15th Hospital Visitation Memo say and what does it mean?

On April 15, 2010, President Obama sent a memo to the federal Department of Health and Human Services (HHS). The memo told HHS to create new regulations about hospital visitation policies for all hospitals that get federal money.

The new regulations the President asked HHS to write would require hospitals to allow patients to decide who can visit them and who has the legal power to make medical decisions for a patient if the patient is unable to.

Did President Obama talk about LGBT people in the Hospital Visitation Memo?

Yes. The President’s memo said he wanted to protect LGBT patients and their families “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.”

Why is this issue important to the LGBT community?

Anyone who is in the hospital deserves to be visited by friends and loved ones and to have a trusted person make decisions for them if they are too ill or unconscious.

But in most states, the law will automatically give the power to make your medical decisions to a biological or legal relative, such as a parent or a sibling. Even if you are married or in a civil union or domestic partnership, you may be hospitalized in a state that does not legally honor your relationship. Many hospitals will also prevent your friends and loved ones from visiting you except for legal relatives.
The law often does not recognize the relationships that LGBT patients have to their partner, spouse, friends, and loved ones. The proposed regulations would require hospitals receiving federal funds to let patients choose their own visitors and medical decision-makers. When these new regulations become law, they will provide significant protections to LGBT patients.

Are the new regulations in effect?

Not yet. Before any new regulations can go into effect, the government has to publish a draft and allow the public to comment.

As President Obama directed, HHS issued draft regulations on June 25th, 2010. The public had 60 days—until August 27, 2010—to comment on these regulations. Now, HHS will review the comments submitted, make changes based on the comments, and publish the final regulations by November.

The final regulations will likely go into effect on January 1, 2011.

What is NCLR doing to make sure LGBT people are protected by these regulations?

NCLR submitted comments asking HHS to expand the regulations to protect LGBT patients who are too ill or unconscious to choose their visitors or decision-makers. When a patient is unable to choose, we urged HHS to automatically give visitation rights to any person who plays a significant role in the life of a patient, including same-sex partners, families of choice, and close friends.

In addition, if a patient is incapacitated and does not have documents specifically naming a medical decision-maker, we urged HHS to require hospitals to give medical decision-making authority to the person who is most familiar with the wishes of the patient, regardless of whether their relationship would be recognized by the law.

Through our coalition work, NCLR also helped write a joint letter to HHS (pdf) from 53 national, state and local organizations.
What does all of this mean right now for the rights of LGBT patients and families?

Right now, the new regulations are not yet in effect. That means there is still a big risk that the rights of LGBT patients and families can be violated at hospitals throughout the country.

What can I do now to protect myself and my family?

There are two things you can do right now: 1) a hospital visitation authorization form, and 2) a health care directive or durable power of attorney for health care.

• Hospital visitation authorization: This form tells the hospital that you want a particular person to be able to visit you. If you end up in a hospital, you want to be sure that you can see the people you love—whether that is your partner, a close friend, or chosen family member.

• Health care directive or durable power of attorney for health care: This form lets you say who you want to make decisions for you if you can’t. Even if you are married or in a registered domestic partnership or civil union, your relationship may not be respected without this form. Also, with this form you can choose someone other than your spouse or partner to make medical decisions for you, if you wish.

For more information on other ways to protect your family, please take a look at NCLR’s publication Lifelines (pdf).

download this FAQ (pdf)

download our previous FAQ, “What the Ninth Circuit’s Latest Ruling in the Prop 8 Case Means” (pdf)


Equal Right to Marry, and Divorce

September 2, 2010

by Jarrett Barrios | Boston Globe

It was the embarrassingly rich carbohydrates shown in the preview — the scene of Julia Roberts dining on delectable pasta in Italy — that seduced me into seeing “Eat, Pray, Love.’’ Surely, I thought, this will be the escape I need after a long week, the latest in what has been an emotional year.

read more


Dallas Judge’s Ruling Saying Gay Couple Could Divorce in Texas Rejected on Appeal

August 31, 2010

by Roy Appleton | Dallas Morning News

A state appeals court in Dallas has rejected a lower court’s decision that two gay men who married in Massachusetts had the right to divorce in Texas.

read more


California Seeks IRS Tax Equity for Same-Sex Spouses

August 10, 2010

from the Associated Press

The California Legislature has passed a resolution asking that same-sex spouses and domestic partners be taxed the same as heterosexual married couples.

read more


Gay Couples Sue Alaska Over Tax Inequity

August 3, 2010

from the Advocate

Three same-sex couples have sued the state of Alaska and the municipality of Anchorage for denying them property tax exemptions afforded to senior citizens and disabled veterans.

read more


Hawaii Lawsuit Seeks Equal Rights for Gay Couples

July 29, 2010

by Mark Niesse | Associated Press

Six gay couples in Hawaii are filing a lawsuit Thursday asking for the same rights as married couples, three weeks after Gov. Linda Lingle vetoed a same-sex civil unions measure.

read more


Montana Same-Sex Couples Sue State For Legal Protections For Their Families

July 23, 2010

from the ACLU

Seven Couples Seek Equal Protection Mandated Under Montana’s Constitution

Seven committed same-sex couples today filed a lawsuit against the state of Montana for failing to provide legal protections to same-sex couples and their families in violation of the Montana Constitution’s rights of privacy, dignity and the pursuit of life’s basic necessities and its guarantees of equal protection and due process. The goal of this lawsuit is ensure that same-sex couples are able to protect their families with the same kind of legal protections that opposite-sex couples are offered through marriage.

Because there is a constitutional amendment in Montana barring marriage for same-sex couples, the couples in the lawsuit are seeking the protection of state-recognized domestic partnerships, similar to those in place in several other states.

“Mary Anne and I are part of a family unit, bonded by love and mutual respect and a desire to share in a close relationship that benefits not only us, as partners, but our wider family and the entire community,” said Jan Donaldson, a Helena nurse, of her 27-year relationship with her partner, pediatric neurologist Mary Anne Guggenheim. “We depend on one another, in all aspects of our life together. We want to be able to do that with grace and dignity and to feel secure that our relationship will be respected. We want our relationship to be recognized for what it clearly is – a loving commitment of responsibility worthy of security and protection by the state.”

Montana law automatically grants married opposite-sex couples safeguards upon which they can depend in times of need. But, under Montana law, it is possible for same-sex couples to be barred from visiting their partners in the hospital and to be left out of conversations about emergency medical care. Montana inheritance laws refuse to recognize same-sex couples, and can leave surviving partners with nothing if their partners die without valid wills. Today’s lawsuit seeks a mechanism such as the domestic partnership laws adopted by several other states to provide similar protections for committed same-sex couples.

“It’s unfair for same-sex couples who have made commitments and formed families to be treated by the state like legal strangers,” said Betsy Griffing, Legal Director for the ACLU of Montana. “Lesbian, gay and bisexual Montanans are valuable and productive members of society who should be treated fairly if their partner is in the hospital or dies without a will.”

“Denise has stood with me through 56 brain surgeries and over 300 spinal taps, yet to Montana we’re nothing more than strangers. Knowing we have legal protections for our family sure would make it easier on both of us the next time I have a medical crisis,” said Kellie Gibson of Laurel, who is raising two children with her partner Denise Boettcher.

Plaintiffs in the case Donaldson and Guggenheim v. State of Montana are Mary Anne Guggenheim and Jan Donaldson of Helena, Stacey Haugland and Mary Leslie of Bozeman, Mike Long and Rich Parker of Bozeman, MJ Williams and Nancy Owens of Basin, Rick Wagner and Gary Stallings of Butte, Denise Boettcher and Kellie Gibson of Laurel, and Casey Charles and David Wilson of Missoula.

In addition to Griffing, the couples are represented by Elizabeth Gill, a staff attorney with the ACLU Lesbian, Gay, Bisexual and Transgender Project; James Goetz and Ben Alke of the Bozeman, MT, law firm Goetz, Gallik & Baldwin P.C.; and Ruth Borenstein, Philip Besirof and Neil Perry of the California law firm Morrison & Foerster LLP.

Additional information about the case, biographies of the plaintiffs and links to videos of the plaintiffs can be found at www.aclumontana.org and www.aclu.org/mtpartnerships.


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