Statement by NCLR Federal Policy Director Maya Rupert, Esq.

(San Francisco, CA, September 7, 2011)—Today, the U.S. Department of Health and Human Services released new guidelines that strengthen the November 2010 hospital visitation rules that protect patients’ rights to be visited in the hospital by their families and loved ones. Today’s guidance, which is effective immediately, strengthens patients’ rights to choose their own representative to make medical decisions if they are unable to speak on their own behalf. This guidance makes several important changes to current policy and provides significant protections for lesbian, gay, bisexual, and transgender (LGBT) patients and their families.

The new guidance requires that when a patient is competent to choose a representative and surrogate decision-maker, hospitals must honor that request, even if the person had previously designated someone else. In addition, when a patient is incapacitated, hospitals must recognize a patient’s self-identified family members, regardless of whether they are related by blood or legally recognized. This rule specifically includes same-sex partners and de facto parent-child relationships, and even prohibits a hospital from requiring proof of a relationship in order to respect that relationship. Where a patient is incapacitated and more than one person claims to be the patient’s representative, hospitals must resolve the dispute by considering who the patient would be most likely to choose. The hospital must consider factors including the existence of a legally recognized marriage, domestic partnership, or civil union, a shared household, or any special factors that show that a person has a special familiarity with the patient and the patient’s wishes. Importantly, the guidance does not require that the marriage, domestic partnership, or civil union be legally recognized by the state in which the patient is being treated.

Statement by NCLR Federal Policy Director Maya Rupert, Esq.:

“We applaud President Obama for providing these crucial protections for LGBTQ patients and their families. Every person deserves the security that comes from knowing that if they are unable to make decisions for themselves, they can choose who will speak for them and that hospitals will respect their chosen families and friends. All patients and families should be allowed that critical measure of dignity, at one of life’s most vulnerable times, and today’s guidance removes a source of great anxiety and distress for many LGBTQ people.”

The National Center for Lesbian Rights is a national legal organization committed to advancing the civil and human rights of lesbian, gay, bisexual, and transgender people and their families through litigation, public policy advocacy, and public education.