HHS Protects Same-Sex Partners' Rights in Hospitals

The federal government this week announced new guidelines to protect hospital patients’ right to choose visitors, including same-sex domestic partners.

The rules were finalized by the Centers for Medicare & Medicaid Services last fall and apply to hospitals that take Medicare and Medicaid payments. The guidelines also support the right of patients to designate the person of their choice – including a same-sex partner – to make medical decisions on their behalf should they become incapacitated.

 “This announcement is another step toward equal rights for all Americans, and it is another step toward putting the patient at the center of our healthcare system,” CMS Administrator Donald M. Berwick, MD, says in a media release. “All patients should be afforded the same rights and privileges when they enter our health care system, and that includes the same opportunity to see their significant other.”

CMS this week sent a letter to State Survey Agencies, which conduct on-site inspections of hospitals on behalf of CMS, highlighting the equal visitation and representation rights requirements and directing SSAs to be aware of the guidance when evaluating hospitals' compliance.

Tara L. Borelli, an attorney with Lambda Legal, says the new rules and guidance are “a step in the right direction, but we need to make sure that they are consistently followed. Lambda Legal knows from its work, which has included representing same-sex life partners who were treated as mere strangers by emergency room personnel, that there is still an enormous education job ahead about the new rules,” Borelli told HealthLeaders Media.

Borelli says Lambda Legal’s cases, including in Florida and Maryland, illustrate that “confusion persists and families are irreparably harmed when they are disrespected in times of medical crisis.”

“While these cases predate the new rules and guidance, they illustrate that confusion and disrespect of same-sex couples in times of medical emergency is an entrenched problem,” Borelli says.

The rules updated CMS’s Conditions of Participation (CoPs) that apply to all patients even if they are not on Medicare or Medicaid. The CoPs require hospitals to explain to all patients their right to choose who may visit them during their inpatient stay, regardless of whether the visitor is a family member, a spouse, a domestic partner (including a same-sex domestic partner), or another type of visitor, as well as their right to withdraw such consent to visitation at any time.

CoPs protect the rights of hospital patients to have representatives who can act on their behalf. HHS has updated the guidance for these rules to emphasize that hospitals should give deference to patients’ wishes concerning their representatives, whether expressed in writing, verbally, or through other evidence, unless prohibited by state law. The guidance issued this week is intended to make it easier for relatives, including a same-sex domestic partner, to make informed care decisions for loved ones who have become incapacitated, HHS says.

Borelli says the biggest obstacles to compliance are states that ban same-sex marriages. “That invites confusion and disrespect by others,” she says. “This occurs even when the law offers same-sex couples a lesser status with protections, such as domestic partnership or civil union.”