Friday, April 16, 2010

President Obama Mandates LGBT Rights to Hospital Visitation / Part Two: The Memorandum and Its Legal Effect

I'm not going to paste the whole memorandum here, because the post is already plenty long. But it does contains some really wonderful stuff. Take a look:
[E]very day, all across America, patients are denied the kindnesses and caring of a loved one at their sides.... 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.
The memorandum goes on to instruct the Secretary of Health and Human Services to:  
ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives … should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.
 Now, this is a presidential memorandum, not an executive order. Does it still carry the weight of law? Happily, the answer appears to be “yes,” at least based on my (not even remotely thorough) research. The Department of Justice, in a 2000 legal memorandum,  advised the President as follows
It has been our consistent view that it is the substance of a presidential determination or directive that is controlling and not whether the document is styled in a particular manner. This principle plainly extends to the legal effectiveness of a document styled as a "presidential directive." Moreover, as with an executive order, a presidential directive would not lose its legal effectiveness upon a change of administration.
If anybody knows of anything that contradicts this, I hope you’ll pipe up.

Some people have noted with concern that the memorandum also contains the following disclaimer: “This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.”

This doesn’t concern me in the least, however, for two reasons. First, the language is pretty standard. Indeed, just this year such disclaimers have appeared in numerous presidential memoranda and executive orders including this one and this one and this one and this and this

Second, the disclaimer only applies to the federal government. It doesn’t say anything about not suing a hospital. So there may be limits on suing, say, a VA hospital, but the vast majority of hospitals are still vulnerable to lawsuits if they fail to comply.

So, what happens now?  Based on the wording of the memorandum, the Secretary is directed to enforce current laws regarding patient advance directives, specifically 42 CFR 482.13 and 42 CFR 489.102(a). So, to the extent the law currently permits visitation by LGBT partners, hospitals and staff members are now on notice that ignoring such directives will no longer be permitted, at least in theory. That's the most immediate effect. 

The Secretary is also instructed to promulgate rules to carry out the memorandum's directives. Because the rulemaking process requires a public comment period, that will take a few months. 

Finally, the memorandum gives the Secretary 180 days to recommend "actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families." Other than the introductory stuff, this is the only part of the mandate that specifically refers to the LGBT community. 

I would like to point out here that the President didn't have to issue a memorandum to make this happen. And given that he decided to do it in writing, he could have very easily just stuck the mandate language in there, and not mentioned a word about LGBT discrimination. 

So yes, we've still got DADT and DOMA. And no, we're not going to let up on the President. But this was a courageous move all the same, and the President deserves considerable credit for ensuring our rights so openly and eloquently.

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