In February 2007, Lisa Pond unexpectedly collapsed after suffering an aneurysm aboard a cruise ship while it was docked. Lisa was transported to a Miami trauma center where she was admitted at 3:30 p.m.
Lisa's partner of 18 years, Janice Langbehn, informed the admitting clerk that she was Lisa's life partner and offered to provide Lisa's medical history, but the clerk rejected Janice's offer and refused to provide Janice with information about Lisa's condition. Over the next eight hours, the clerk repeatedly denied Janice and their three jointly adopted children access to Lisa despite receiving Lisa's executed power of attorney, which allowed Janice to make medical decisions for Lisa in case of her incapacity. Janice and her children were unable to be at Lisa's side until 11:30 p.m. after Lisa was transferred to the intensive care unit. Lisa was declared brain dead the next morning.
Progress has been achieved in the past nine years. However, LGBTQ patients and their families still face challenges in securing quality and culturally sensitive healthcare. The struggles the Langbehn-Pond family faced influenced a 2010 presidential memorandum recommending that the Department of Health and Human Services ( "DHHS" ) update hospital visitation policies for hospitals participating in Medicare or Medicaid to prohibit discrimination based on sexual orientation or gender identity. In 2011, DHHS revised its Conditions of Participation in accordance with the presidential memorandum, and The Joint Commission, the largest national hospital accreditation organization, updated its standards to include equal visitation for LGBT patients and visitors. Additionally, the following state and federal regulations protect a patient's right to receive non-discriminatory care, equal visitation, and accurate medical records.
Patient Non-Discrimination
A 2009 Lambda Legal survey revealed that 56 percent of LGB respondents and 70 percent of transgender respondents had experienced at least one of the following types of discrimination in healthcare: being refused needed care; healthcare professionals refusing to touch them or using excessive precautions; healthcare professionals using harsh or abusive language; being blamed for their health status; or healthcare professionals being physically rough or abusive.
Recently enacted federal and state laws combat these types of discrimination. Federally, the Affordable Care Act ( "ACA" ) and implementing regulations prohibit discrimination based on sex, defined to include gender identity and sex stereotypes, in any health program receiving federal funds.
The Illinois Human Rights Act prohibits discrimination based on sexual orientation or gender identity in housing, employment, and public accommodations, which includes the professional office of a healthcare provider and hospitals. Additionally, the Chicago Human Rights Ordinance prohibits the denial of equal treatment to any individual based on sex, gender identity, and sexual orientation in places of public accommodations.
Individual healthcare facilities can be proactive in adopting written non-discrimination policies that include "sexual orientation" and "gender identity" to convey their organizational commitment to LGBTQ non-discrimination. These policies may be posted online, in patient waiting areas, or provided directly to patients.
Visitation
The presence of family and friends is a crucial part of a patient's healing process. As mentioned above, federal law requires that a hospital participating in Medicare and Medicaid must "not restrict, limit, or otherwise deny visitation privileges on the basis of … sex, gender, identity, [or] sexual orientation." Additionally, Illinois law requires that every healthcare facility in the state permit visitation by any person designated by a patient unless the facility does not allow any visitation or if visitation would endanger the health or safety of a patient.
Healthcare facilities may place reasonable and necessary limitations on visitation, including the hours of visitation and the number of visitors per patient. However, hospitals must adopt written policies and procedures concerning visitation rights, and patients or their support person must receive notice of their visitation rights, including the right to receive visitors designated by the patient.
Medical Records
Many electronic health record ( "EHR" ) platforms inadequately document gender identity and gender expression. In 2014, only 13 percent of healthcare facilities had an explicit method of recording whether a patient's current gender identity differed from the sex on their birth certificate, and only 45 percent of providers included this information in free-form notes. The sex entered into an EHR can have clinical implications, including determining normal ranges for certain blood tests.
To address these inadequacies, the Centers for Medicare and Medicaid Services published new rules in October 2015 requiring EHR systems certified under Stage 3 of the Meaningful Use program to have the capacity to collect sexual orientation and gender identity information from patients. This provides healthcare professionals more information on a patient that can assist with identifying treatments most helpful to a particular patient.
To assure that medical records contain accurate demographic information, patients may request access to their medical records. Generally, under Illinois law, healthcare facilities must permit patients to examine and copy their medical records within 30 days from a written request. Healthcare facilities may, however, charge patients for the cost of copying their medical records. Patients may request an amendment to a record containing inaccurate or incomplete information.
If you are interested in learning more about regulations affecting your healthcare, please feel free to contact myself or any of Clark Hill's experienced attorneys.
