The Changing Landscape of LGBT Healthcare Equality in Delaware
LGBT healthcare equality begins with equal access to care. It also includes the right for our families to have equal access for hospital visitation and surrogate decision making if that becomes necessary. None of us plan to be hospitalized but it is important for LGBT folk to know our rights in the event of this need.
On January 18, 2011 the Centers for Medicare and Medicaid Services (CMS) made it a requirement for any hospital receiving federal money (virtually every hospital in the country) to ensure that there is equal access for visitation regardless of legal relationship to the patient. This offers new protections nationally for the visitation rights of same gender couples and same gender parents. This is in line with a foundational principle of patient-family centered care that “family” is defined by the patient. With this CMS requirement a healthcare facility cannot deny the right of a person to visit a patient based on his/her sexual orientation or gender identity.
CMS also has outlined some forms of “proof” that hospitals can use in establishing the appropriateness of a visitor “where the patient is incapacitated or otherwise unable to designate visitors, and a representative in accordance with State law or a patient-designated support person is not available to exercise the patient’s rights on his or her behalf.” These proofs may include: “an advance directive; shared residence; shared ownership of a property or business; financial interdependence; marital/relationship status; existence of a legal relationship recognized in another jurisdiction, even if not recognized in another jurisdiction, including: Parent-child, civil union, marriage, domestic partnership; acknowledgment of a committed relationship (e.g. an affidavit); and, written documentation of the patient’s chosen individual(s) even if it is not a legally recognized advance directive.” (Federal Register, Vol 75, 11/19/10, p70837)
The intent of the new CMS standard is for hospital and nursing home visitation policies to be expansive rather than restrictive when it comes to who can be at the bedside. The policies must state that sexual orientation and gender identity can not be used to exclude a visitor. Christiana Care Health System has included these provisions in the most recent revision of our visitation policy. Other hospitals will be making these changes if they have not already done so. In addition to being a regulatory requirement, it is the right thing to do.
Additional Protection Beginning Jan 1, 2012
Another protection in LGBT healthcare equality in Delaware is also on the horizon. Lisa Goodman, Esq., President of Equality Delaware, says that “one of the protections offered by Delaware’s recently enacted Civil Union and Equality Act of 2011 is the addition of a party to a civil union to Delaware’s designated health care proxy list.” This list guides the medical team in seeking direction for a patient lacking capacity in the absence of a power of attorney for healthcare. Spouse is at the top of this prioritized list, and Lisa points out that “a party to a civil union will be included within the definition of spouse under Delaware law as of January 1, 2012.”
It is important to note this protection is only extended to same gender partners that have a civil union recognized by the state. This includes those couples who have had their relationship legally recognized in another jurisdiction (e.g., another state, including the District of Columbia; or, a foreign country). Those couples married or joined in civil union outside of Delaware will have the same legal surrogacy status for healthcare as do heterosexual married spouses in Delaware beginning on January 1, 2012.
Same gender couples who are not civil union partners still will not have legal recognition as a surrogate decision maker in the absence of a power of attorney for healthcare. It is best practice for all folks, LGBT or otherwise, to have a power of attorney for healthcare. It is also best practice to think about this when you are not in a health crisis so that you are prepared if you are in the unfortunate position to need someone to make medical decisions on your behalf in the future.
For additional information on healthcare equality for the LGBT community please check out the Health section under the Issues tab of the Human Rights Campaign website. You may also contact me at Christiana Care Health System for other information on visitation rights or advance directives, 302-733-1227. Email Tmothy Rodden
The Rev. Timothy D. Rodden MDiv, MA, BCC, FACHE is Director, Pastoral Services, Christiana Care Health System, Newark, Delaware.