Ask Lambda Legal

• (In English)

Q: The Department of Health and Human Services, at President Obama's urging, has just released its new regulations on the rights of LGBT patients to name who can visit them in the hospital. What's changed?

A: A lot has changed for the many thousands of same-sex couples and their families who may find themselves in hospitals across the country—but not for everyone in all circumstances. We're proud of this big step forward—and are hopeful that further guidance and interpretation by HHS will work to ensure that no LGBT patients are left out. Fortunately, such additional steps are made possible because these regulations recognize and strongly rebuke discrimination against LGBT patients.

The new regulations, announced November 17 by HHS Secretary Kathleen Sebelius, require hospitals receiving government funds to have written visitation policies; to inform patients of their right to designate visitors, including a same-sex spouse or domestic partner; and to not discriminate with respect to visitation rights based on sexual orientation, gender identity, and other characteristics.

President Obama issued a presidential memo in April directing HHS to develop these guidelines, and was inspired to act after hearing about the ordeal of Lambda Legal client Janice Langbehn. After Janice's partner, Lisa Pond, suffered a sudden aneurysm and lost consciousness during a family vacation, Janice and the couple's children were denied access to Lisa for eight hours in a Florida hospital, and were only let in to see her just before she died. Obama called Janice from Air Force One to tell her personally about the memo and to offer his condolences.

While HHS's new regulations mark important progress for our families, the regulations offer the greatest protection to those who continue to use a "belt and suspenders" approach and complete documentation designating a health care agent (called a health care proxy, a durable power of attorney for health care or a medical power of attorney, depending on where you live). Every LGBT person should complete these documents. To ensure that the hospital can share information about you with whomever you designate as your health care agent, your documentation also should authorize medical personnel to release medical information to your agent under the federal Health Insurance Portability and Accountability Act (HIPAA). As we identified in our 26 pages of comments sent to HHS prior to the adoption of the proposed rules, the new rules do not address some of the greatest vulnerabilities LGBT patients face, including what happens when a patient is unconscious or otherwise unable to tell hospital staffers who he or she would like to have visit. Nor do the new rules address who can make medical decisions for an incapacitated patient. Designating a health care agent is a critical part of filling this gap.

While HHS's regulations are an important first step to address the barriers and disrespect same-sex couples and their families can face in medical emergencies, they remain just that—a first step. HHS has said it will issue additional guidance in the future, but couples must plan for today. If you haven't already, make sure you complete documentation designating a health care agent. For more information on how to protect yourself and your partner, please see our toolkit Take the Power.