Obama extends hospital visitation to same sex-partners!

[DarklingAlice]

It's always nice to wake up and see some good news for a change. The Washington Post reports that "Obama extends hospital visitation rights to same-sex partners of gays".

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

[Pumpkin Seeds]

That is cool.

[Schrödinger]

Except that federal government can't force private institutions, per the 1st Amendment and the 10th amendment, to adhere to this ruling. Or, as per the presidential memorandum released to the press:

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.

A nice gesture, but I'm afraid that's it, a gesture. Lest there is proper legislation and no politicians trying to topple the US government over petty things like giving homosexuals equal rights to decide over their partners and other such matters of human decency. But it's about all Obama can do, given the political clime.

Ah well, baby steps, I suppose.

[Pumpkin Seeds]

Depends on if he enforces it with a threat to withdraw Medicad and Medicare.

[DarklingAlice]

Yes, this memorandum is not a rule. The rule will be made by DHHS. All hospitals that accept government funding (almost all of them) have agreed to comply with DHHS regulation. This is identical to the method used to desegregate hospitals during the civil rights movement.

In short: yes, it is a multi-step process, and it will take time to write the actual regulation, but this is much more than a gesture.

[Schrödinger]

Yes, this memorandum is not a rule. The rule will be made by DHHS. All hospitals that accept government funding (almost all of them) have agreed to comply with DHHS regulation. This is identical to the method used to desegregate hospitals during the civil rights movement.

In short: yes, it is a multi-step process, and it will take time to write the actual regulation, but this is much more than a gesture.

Now that I missed. Where's that exactly?

I mean, it's good news all the same!  :-)

[Caeli]

Awesome news. :-)

[Callie Del Noire]

I am glad to see that it came up (I recall a married couple who were forcibibly kept apart because the state they were vacationing in didn't recognize their union. They wouldn't allow the children back either without a recognized family member)

So the poor woman had to die alone while her spouse and children stayed in the waiting area. That was fucking cruel.

[Schrödinger]

I am glad to see that it came up (I recall a married couple who were forcibibly kept apart because the state they were vacationing in didn't recognize their union. They wouldn't allow the children back either without a recognized family member)

So the poor woman had to die alone while her spouse and children stayed in the waiting area. That was fucking cruel.

Yeah, it's in the article and the video report. The President was particularly moved to propose this due to the case of Janice Langbehn and Lisa Pond, the latter of which died due to an anyeurism.

[Beguile's Mistress]

This is great new because it will benefit not only gay and lesbian couples but older couples who co-habit but don't marry due to financial considerations.  Older men and women on fixed incomes pursue a non-legalized relationship because marrying will reduce their income.  As a result, children and grandchildren have the right to bar partners from hospital rooms and decision making in spite of powers of attorney and such.

It is a gesture but one that will have far reaching effects.

[DarklingAlice]

Now that I missed. Where's that exactly?

From the text of the memorandum:

1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, 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 (such as durable powers of attorney and health care proxies), 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. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient's care or treatment.

2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.

US Code title 42 details the spending of government funds in the pursuit of the public health/welfare. Basically, you are correct in saying that a government mandate to do something violates the 10th amendment. For the same reason the government can't really punish or sanction a state (although that is a little bit foggier). What they can do is provide incentives for following their directives. And this is true of any "Department of x". Their regulations are not laws, but rather the restrictions you need to follow to get government funding. By agreeing to take government funding, whether it be for education, transportation, or Medicare and Medicaid, the institution the government endows must agree to comply with certain rules of behaviour set by the government. This is why this regulation affects only hospitals that accept Medicare and Medicaid (which happens to be most of them). They are free not to comply, but the government endowment would be withdrawn.

And there are a number of private institutions that do not take government funds precisely because they want to set their own rules. To force them to change their behaviour would  take an actual new law. However the ones that have agreed to be under DHHS oversight, must either comply or forfeit their endowments. This process is also mirrored on a state level. It's like the difference between public and private schools. E.g. As a child I was sent to private parochial schools full of prayer and terrible education standards. Which is perfectly within their right as an institution not accepting government funds and therefore not subject to the regulations of the Department of Education.

Now the balance to the governmental "power of the purse" as it is called, is that if DHHS ever demanded something that hospitals felt would be too harmful to their business or ethics they are free to withdraw. And for every hospital that withdraws the government loses power (since the basis of this power is in the advantage gradient created by the influx of government funds), and most likely the trust of the institutions and people involved. If ever a majority of hospitals withdrew from government funding something like this would have no power. However, I would be very surprised if so much as one institution cuts off its own funding rather than follow this regulation as there is essentially no cost to doing so.

[RubySlippers]

Somebody has to stop this travesty on the rights of private religious hospitals to set their own rules according to their values on visitation of persons, its a memorandum then it should be acted on by these parties now in Federal Court before it can be enacted. There is no grounds for this under the US Constitution and no Federal Law grants rights for sexual orientation unlike th disabled where there is some serious protections in place. The place to fight this is in either a Federal Law granting benefits equally to all persons or at the state level or better still public pressure to bring them into line with the majority if that is what is wished. Not a mandate from Obama that has little merit under provisions of the before mentioned areas of law.

And for me this is dicer since with the Health Care Reform Law it assures that there is more Federal Funding and a higher level of abuse of this authority by 2016.

I'm gay but why should there be some special case under the law forcing say a Catholic hospital from letting in my lover, I simply decided that I will go only to hospitals that don't so discriminate and insisted in clear directives I be moved to such a hospital after a medical emergency is stabilized. All clear and in writing with my lawyers information if they decide to violate my wishes and face a lawsuit. My lover has standing rights to access me and a say in my care with my parents, also in strong legal documents. That should suffice. Why not limit a change to cover those with clear legal documentation like I have any couple that is serious should have made similar arrangements in some way.

[DarklingAlice]

Somebody has to stop this travesty on the rights of private religious hospitals to set their own rules according to their values on visitation of persons, its a memorandum then it should be acted on by these parties now in Federal Court before it can be enacted.

The government is merely delineating what can be done in institutions that receive their funding. How is that anything but fair? If a hospital has an issue they are well within their rights to opt out of government funding. Please don't mis-characterize this as anyone being forced to do anything.

[Farmboy]

Yeah, amazingly it will be the difficult choice now of these religion-based hospitals to be nice or to refuse money. Maybe they'll decide to be nice.

[Brandon]

Its rare that I have anything good to say about Obama but this is excellent news. I applaud him for doing the right thing. Hopefully we will see more of this kind of thing in the future