Hospital Statement Accidentally Shows Wrongdoing

Fortunately, the travesty that occurred at Research Medical Center in Kansas City, Missouri ("RMC"), where a man's partner was handcuffed and arrested for seeking to stay with his ailing partner, continues to get much deserved coverage and as the hospital tries to dig itself out of the hole created by an abusive nurse and seemingly homophobic hospital personnel, it may have actually documented that it violated federal requirements,  So again I ask, will the Obama administration make good on its threat that hospital that behave in this manner will be cut off from Medicaid and Medicare funds?  An example needs to be made that will send shock waves through the hospital administration world to guarantee that this kind of bigotry and unequal treatment ceases once and for all.  If it takes bankrupting a hospital to accomplish this end, then so be it.  The New Civil Rights Movement has an extensive piece that looks deeper at what really happened and the growing evidence that the hospital not only knowingly violated the federal requirements but engaged in homophobic conduct.  Here are excerpts:

It cannot be stated enough that this case demonstrates the imperative that DOMA, the Defense of Marriage Act of 1996 that bans the federal government from recognizing same-sex marriages, must be repealed and all same-sex couples who wish to be legally married are allowed to do so.   Hospitals time and time again refuse to follow federal guidelines or observe legal contracts, often feigning ignorance to cover up their bigotry — or, indeed, actual ignorance.

RMC’s statement provides evidence that the hospital’s employees did not follow proper federal procedure and policies in a flagrant and offensive disregard for the rights of their patient and their patient’s same-sex partner.

John Aravosis, who is the editor of AmericaBlog, and has a law degree from Georgetown University and years of experience in legal matters and LGBT civil rights, published an examination of event after personally contacting the federal offices of Medicare and Medicaid in Washington, D.C., and interviewing Amanda Brown, the 26-year old daughter of Roger Gorley.

Aravosis writes “the hospital claims that Gorley was asked to leave because he wouldn’t quiet down.  But at the same time, the hospital claims that Gorley was asked to show his medical power of attorney for his partner Allen, and couldn’t provide it. Leading to the proverbial: ruh roh.”
“By admitting that they asked Roger Gorley to prove that he had medical power of attorney for his spouse, Allen, the hospital admits that things would have turned out differently had Gorley had the proof on his person,” Aravosis explains:

Thus, the hospital admits that this was not, as it keeps claimingly, solely a case of a man being “disruptive.” It was a case of a gay man being unable to prove, to the hospital’s satisfaction, that he was the spouse of another gay man lying in the emergency room.  Thus the hospital’s due diligence, or lack thereof (I’d argue), in finding out whether Gorley was the spouse is relevant – nay, key – to this entire story.  And as I’ll show below, the hospital’s due diligence in following federal regulations governing same-sex hospital visitation appears to have been lacking, to say the least.

And Aravosis adds:

Under the federal regulations governing same-sex hospital visitation, the hospital does not appear to have followed the regulations – by its own admission – making it subject to possible forfeiture of its Medicare and Medicaid contracts with the federal government. Here’s why:
A) I interviewed the Medicare and Medicaid office in Washington yesterday, and got the complete details of the hospital visitation regulations.  Roger didn’t need to provide any proof of his medical power of attorney, or anything else for that matter, if, as his daughter claims, patient Allen said, during the altercation, “I want him here.”
Under federal regulations, that is all that is needed, the argument ends.  So why did the hospital ask gay Roger to prove his power of attorney?

B) Let’s assume, devil’s advocate, that the daughter is wrong, and patient Allen did not ask for Roger to stay (perhaps he was unconscious).

Federal regs say that the partner can simply say “I’m in charge,” and that’s enough UNLESS someone else asserts that they too are in charge of the patient, which appears to have happened here when Allen’s straight brother also stepped in and asserted his authority  Here’s what the regs say happens next, and I quote the federal guideline accompanying the regs:

“In such cases [when more than one individual claims to be the patient’s representative], it would be appropriate for the hospital to ask each individual for documentation supporting his/her claim to be the patient’s representative.  The hospital should make its determination of who is the patient’s representative based upon the hospital’s determination of who the patient would most want to make decisions on his/her behalf.  Examples of documentation a hospital might consider could include, but are not limited to, the following:  proof of a legally recognized marriage, domestic partnership, or civil union; proof of a joint household; proof of shared or co-mingled finances; and any other documentation the hospital considers evidence of a special relationship that indicates familiarity with the patient’s preferences concerning medical treatment.”

Aravosis offers an exceptionally thorough examination that would lead practically anyone to agree the hospital violated the couple’s rights.

In a separate and also extensive piece, Aravosis’ exclusive interview of Gorley’s daughter, there’s this frightening indictment:

Daughter says security assumed dad had AIDS because he was gay

Amanda’s account of hospital security’s treatment of her father, which she posted to her blog, is chilling – it’s still unclear if this was the KCPD or the hospital’s own private police:

When the Kansas City Missouri Police Department arrived they asked my father to leave the room. He said to them, “No. This is my husband and I am going to stay with him.”

The police considered that a violation of a direct order, so they began to forcibly remove him from the room. My father held onto the rail of the gurney as well as his husbands hand with everything he had. The police responded with brut and excessive force. The office began karate chopping his wrist to get him to release the gurney. Then they wrestled him to the ground forcefully enough to knock his glasses off of his face, his hearing aids out of his ears, and nearly break his wrist while they took him down. To handcuff him, they pushed a knee into his back and wrenched his wrists around.

It didn’t end there. The police changed his handcuffs 4 times! They assumed because he was a gay man that he was HIV+. When they drew blood from accosting him in such a brutal manner they freaked out. One of the arresting officers was so offended by my father’s presence that he would not touch him with his bare hands. He wore gloves the entire time and to make matters even more humiliating he didn’t want his handcuffs back. He grabbed them with gloves on, then another layer of gloves pinched between his index finger and thumb as he handed them off to another officer. The officer taking the handcuffs looked at him like he was crazy and just grabbed the handcuffs with no issue.

Welcome to the world of being gay in red states.  This nightmare could happen to any gay couple in the states where gay relationships receive ZERO legal recognition.   Virginia is a prime example.  The boyfriend and I both have medical powers of attorney that in theory would avoid this type of situation, but in a true emergency, stopping and grabbing the medical power of attorney is likely to be the last thought on one's mind.  

Which brings me to what keeps this type of abuse and bigotry alive:  the Christofascists (in Virginia, The Family Foundation lead the way in gay bashing and stigmatization) who continue to disseminate hate and lies about gays and do all in their power to keep us unequal under the law and to make our lives a living Hell.  These people are evil and their power and the deference they are given needs to end.

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It Doesn't Have to Happen to You - LGBT Estate Planning

The You Tube video "It Could Happen to You" set out above has gone viral with well over two million views.  The video shows exactly what can happen when same sex couples fail to take proper steps to ensure that family bigotry and/or hostile cultural settings do not lead to horrific and cold hearted results.  Here in Virginia - a decidedly anti-gay state - there are some things same-sex couples can and should do to provide for some of the legal protection automatically conferred on heterosexual married couples.  The story set forth in the video does not have to happen.  One can even specify who will plan one's funeral and make all related decisions.  Unfortunately, far too many LGBT couples fail to take these relatively simple steps to avoid the adverse and/or unexpected effects of current Virginia law, in particular the “Marshall-Newman Amendment” to the Virginia Constitution enacted in November, 2006.

NECESSARY DOCUMENTS AND STEPS:  There are some basic documents and steps that every unmarried couple and every same-sex couple in a committed relationship should have prepared and duly signed.  These documents will stand up under the Marshall Newman Amendment and include:

            Will - A will specifies how you wish your property to be distributed upon your death. In a will, you designate the person you wish to handle your estate -- your partner or another individual. Without one, your partner receives absolutely nothing.  Pursuant to § 64.1-46 of the Virginia Code, anyone who is over the age of 18 years and not mentally incompetent may make a will and thereby dispose of any estate to which he shall be entitled, at his death, including any estate, right or interest to which the testator may be entitled at his death, notwithstanding he may become so entitled subsequently to the execution of the will. Inasmuch as neither § 64.1-46 or other provisions of the Virginia Code restrict permitted devisees to spouses or blood relatives, both unmarried heterosexual couples and same-sex couples may make wills leaving assets to their partners.

            Trust - A properly established and funded trust avoids publicly probating assets owned by the trust at the time of one’s death and is more difficult to challenge in court than a will.  In addition, a trust can provide beneficiaries with creditor protection in certain circumstances.  Properly structured, a trust can provide support for one’s surviving partner for the remainder of his or her life, with the remainder to pass to other relatives and designated beneficiaries, bypassing potential taxes associated with the surviving partner's estate.  Chapter 4, Title 26 of the Virginia Code governing the appointment, qualification, resignation, removal of fiduciaries, including trustees, contains no provision restricting permitted trustees or trust beneficiaries to spouses or blood relatives.   Therefore, both unmarried heterosexual couples and same-sex couples may create trusts naming their partners as beneficiaries in a manner that does not purport “to bestow the privileges or obligations of marriage.”

            * Health Care Power of Attorney - A health care or medical power of attorney allows one’s partner regardless of gender to make medical decisions on your behalf in the event you are not able to do so due to incompetency or other incapacity.   Properly drafted, a health care power of attorney can also ensure hospital visitation rights to the designated attorney-in-fact

            * Advanced Medical Directive - § 54.1-2983 of the Virginia Code provides that any mentally competent adult may, at any time, make a written advance directive (i) authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and (ii) appointing an agent to make health care decisions for the declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.  Advance medical directives must be signed by the declarant in the presence of two subscribing witnesses who cannot be the spouse or blood relatives of the declarant. 

            There is no statutory restriction that one’s agent must be a spouse or blood relative.  Rather, §54.1-2982 of the Virginia Code provides that under any such advance medical directive, an agent means “an adult appointed by the declarant under an advance directive, executed or made in accordance with the provisions of § 54.1-2983, to make health care decisions for him. . ." Such authority includes visitation rights, provided the advance directive makes express provisions for visitation.  Therefore, properly drafted and executed advanced medical directives by a same-sex couple should not be deemed to “bestow a privileges or obligations of marriage.”

* Legislation passed in 2007 authorized a central statewide repository where these documents can be filed and accessed by healthcare providers.  The system is still not yet operational.

            General/Business Power of Attorney - This form of power of attorney allows a member of either an unmarried couple or a same-sex couple to authorize their partner to handle their financial affairs in the event of disability or unavailability.

Child Care Power of Attorney for Non-Adopted Children - Another common difficulty is that non-adoptive, non-birth parents are NOT considered to be the parent or guardian of the children of the birth parent in the relationship.  Thus, they are legally “strangers” and have no right to be involved in health care, educational, or other decisions for their partner’s children.  In this context, it is critical that the birth parent execute a child care power of attorney in favor of their partner so that the non-birth parent partner authorized to communicate with make decisions with school personnel, doctors, dentists and other providers.

            Title on Deeds and Accounts - How title to property is held can effect both future  ownership and tax liability. Joint tenancy with rights of survivorship, for example, will ensure that the surviving partner will have full ownership upon the death of the deceased partner and avoid ownership disputes with surviving blood relatives.  However, it can create certain negative estate tax treatment depending on the size of one’s taxable estate. Historically, deeds creating a tenancy by the entirety have been reserved for husband and wife couples.   In light of the Virginia Affirmation of Marriage Act cited above, such a deed conveying title to a same-sex couple even though validly married in another state such as Massachusetts would not be effective in Virginia.

BENEFICIARY DESIGNATIONS: Most securities and retirement accounts provide for the designation of beneficiaries.  These should be reviewed periodically to ensure that desired goals are achieved and also should include the designation of contingent beneficiaries to ensure the desired parties are named in the event of the death of the principal beneficiary. 

LIFE INSURANCE: Properly utilized, life insurance can provide funding for payment of estate taxes, outstanding mortgages, charitable trusts, education of minors, and other functions.

SPECIAL NEEDS TRUST: If a loved one is disabled, you will want to consider establishing a Special Needs Trust for that individual. A Special Needs Trust can be created by the donor during his or her life or it can be created by one’s Last Will and Testament.  The purpose of such a trust is to enable the donor to provide for the continuing care of a disabled partner or child so that the loved one will have access to the trust assets for purposes other than those provided by public benefits programs. Of equal importance, the beneficiary will not lose eligibility for needs-based benefits, such as Supplemental Security Income ("SSI"), Medicaid, or low-income housing.

NOTE: This article contains a general discussion of estate planning matters which vary greatly in asset structuring needs and potential tax liability based on the particular facts and circumstances of individuals and the nature of their assets.  Therefore, it should not be relied upon as a substitute for individualized legal advice addressing one’s particular situation.

Obama Extends Hospital Visitation Rights to Same-Sex Partners

While continuing to break most of his campaign promises to LGBT Americans - particularly in respect to ENDA and the repeal of DADT - President Obama threw the LGBT community a bone yesterday by mandating that any hospital that receives Medicare or Medicaid funding must extend visitation rights to the partners of gay men and lesbians and allow same-sex couples to share medical powers of attorney. No doubt Catholic hospitals will not be happy, even though it will mean that LGBT couples will no longer need to avoid such hospitals in favor of non-sectarian hospitals. Up until now, I have specifically recommended to my LGBT clients that they avoid the two local Catholic run hospitals to avoid possible visitation and/or decision making problems. Hopefully this action will bar future tragedies where long time partners are barred from seeing their loved one such as the one involving Janice Langbehn and Lisa Pond that occurred in a Miami hospital (I wrote about this incident and was privileged to have Janice write to me later). LGBT couples, however, still need to sign medical powers of attorney to make sure they fit within the scope of this new directive. Here are some highlights from the Washington Post:
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President Obama mandated Thursday that hospitals extend visitation rights to the partners of gay men and lesbians and allow same-sex couples to share medical power of attorney, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.
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The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.
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[T]he new rule, once in place, will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation's health-care institutions. It is currently common policy in many hospitals that only those related by blood or marriage be allowed to visit patients or have power of attorney, which allows them to make medical decisions on behalf of a seriously ill or injured patient. Obama's order will start a rule-making process at HHS that could take several months, officials said.
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Obama's mandate is the latest attempt by his administration to advance the agenda of a constituency that strongly supported his presidential campaign. . . . But the moves have been too slow for some gay rights activists, who have urged the president to be more vocal and active in championing their causes. John Aravosis, a prominent gay blogger, wrote last October that Obama's "track record on keeping his gay promises has been fairly abominable."
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[O]pponents of same-sex marriage have called the visitation issue a red herring, arguing that advocates want to provide special rights for gays that other Americans do not have. A spokesman for one group said the president's move was part of a broader effort to appease gays and to undermine the institution of marriage.
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"In its current political context, President Obama's memorandum clearly constitutes pandering to a radical special interest group," said Peter S. Sprigg, a senior fellow for policy studies at the Family Research Council.
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Efforts to reach a spokesman for the Catholic Health Association of the United States were unsuccessful. In the memo, Obama said hospitals should not be able to deny visitation privileges on the basis of sexual orientation or gender identity. "Every day, all across America, patients are denied the kindnesses and caring of a loved one at their sides whether in a sudden medical emergency or a prolonged hospital stay," he wrote.
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Officials said Obama had been moved by the story of a lesbian couple in Florida, Janice Langbehn and Lisa Pond, who were kept apart when Pond collapsed of a cerebral aneurysm in February 2007, dying hours later at a hospital without her partner and children by her side.
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The new rules will not apply only to gays. They also will affect widows and widowers who have been unable to receive visits from a friend or companion. And they would allow members of some religious orders to designate someone other than a family member to make medical decisions.
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But it is clear that the document focuses on gays. A number of areas remain in which federal law requires proof of marriage, including receiving Social Security benefits and in taxes. "The General Accounting Office has identified 1,138 instances in federal law where marriage is important," said one gay rights activist.

Virginia's Statewide Advance Health Care Directive Registry to Go Live on February 17, 2010

It has taken almost two years to become effective, but reportedly Virginia's statewide Advance Health Care Directive Registry will begin to go live after being approved in the 2008 session of the Virginia General Assembly. The Registry will be fully operational by this year’s National Health Care Decisions Day on April 16, 2010. Amazingly, Virginia will be only the tenth state in the nation that offers its residents an Advance Directive Registry. The Registry will provide a means whereby health care providers can access health care directives anywhere in the state regardless of an individual/couple's sexual orientation. Here is how Equality Virginia describes this development:
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Del. Dave Englin and Sen. George Barker introduced legislation to create the statewide Advance Health Care Directive Registry in 2008. With EVA's strong support, this bill passed the General Assembly almost unanimously before being signed by the Governor. The bill mandated creation of a state database where all Virginians can upload their Advance Health Care Directives in order to make them accessible to hospital administrators if the patient is incapacitated or does not have the paper copies readily available.
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The Registry will help ensure that health care providers will have easy access to the documents that make a patient’s health care wishes known, avoiding conflicts that can arise among and between loved ones when such documents are not in the hands of those providing treatment. The Registry law was effective on July 1, 2008, and the process for defining regulations and procedures for implementing this new online database has been moving along since then.
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At a recent meeting, the companies engaged to create the Registry made a presentation outlining how the Registry will work and announced that the registry will be “live” for individuals on February 17, 2010, institutions on March 17, 2010 and will be fully operational by this year’s National Health Care Decisions Day on April 16, 2010.
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The temporary state regulations can be found here as extended here. As soon as final regulations and a website address are available, I will post updated information.

Dying Lesbian's Partner Denied Access To Her In Hospital

I try to stress to my LGBT clients the need to have proper medical powers of attorneys, financial powers of attorney and, of course, wills in place to insure that a nightmare like the one that befell Janice Langbehn and Lisa Pond as related in this story from 365gay.com (http://www.365gay.com/Newscon08/02/022208fla.htm) does not occur. The cost is not overwhelming - and get some comparative quoteseven - and having the proper documents in place can avert total disaster. Some employers even offer prepaid legal plans as an employee benefit that can make the cost even more affordable. Here are some story highlights:

But just as they were about to depart on the cruise from Miami, Florida. Pond, a healthy 39-year-old, suddenly collapsed. She was rushed to Jackson Memorial Hospital in Miami with Langbehn and the children following close behind. But once Langbehn and the children arrived at the hospital the hospital refused to accept information from her about Ponds’s medical history. Langbehn says she was informed that she was in an antigay city and state, and she could expect to receive no information or acknowledgment as family. A doctor finally spoke with Janice telling her that there was no chance of recovery.

Soon after Pond'’s death, Langbehn tried to get her death certificate in order to get life insurance and Social Security benefits for their children. She was denied both by the State of Florida and the Dade County Medical Examiner. With the help of Lambda Legal Langbehn has notified Jackson Memorial Hospital that she intends to file a lawsuit.

Again, a proper will and medical power of attorney could have avoided this nighmare. When traveling, LBGT couples should always carry a valid medical power of attorney for each member of the couple. Likewise, if both parents are not their children's legal guardian, a medical power of attorney shouls be granted by the legal parent to the other partner. I hope people will learn from Janice Langbehn and Lisa Pond's misfortune.

Enforceability of Sam Sex Estate Planning Documents in Virginia

Frequently same sex couples in Virginia as me whether or not their wills and similar estate planning documents will be enforceable in Virginia in light of the “Marriage Amendment” to the Virginia Constitution enacted in November, 2006 (which applies equally to ALL unmarried couples, gay or straight). Here is my analysis of how these documents hold up to potential challenges. First, historically naming devisees, attorneys in fact, and trust beneficiaries has NEVER been restricted to spouses or blood relatives. Therefore, anti-gay "marriage" provisions do not reach these types of agreements, although the existence of such provisions may increase the chances that hostile relatives might try to challenge a gay couple’s estate planning decisions. Second, it is highly unlikely that a court – especially an appellate court - would overturn properly drawn and executed documents since it would cause a cataclysm legally and put MANY trusts, wills and other documents at risk. In addition, certain statutory provisions do not bar same sex estate planning documents:

WILLS: Neither § 64.1-46 or other provisions of the Virginia Code restrict permitted devisees to spouses or blood relatives; therefore, both unmarried heterosexual couples and same-sex couples may make wills leaving assets to their partners.

TRUSTS: Chapter 4, Title 26 of the Virginia Code governing the appointment, qualification, resignation, removal of fiduciaries, including trustees, contains no provision restricting permitted trustees or trust beneficiaries to spouses or blood relatives. Therefore, both unmarried heterosexual couples and same-sex couples may create trusts naming their partners as beneficiaries in a manner that does not purport “to bestow the privileges or obligations of marriage.”

ADVANCED MEDICAL DIRECTIVE - § 54.1-2983 of the Virginia Code provides that any mentally competent adult may, at any time, make a written advance directive (i) authorizing the providing, withholding or withdrawal of life-prolonging procedures in the event such person should have a terminal condition, and (ii) appointing an agent to make health care decisions for the declarant under the circumstances stated in the advance directive if the declarant should be determined to be incapable of making an informed decision.

HEALTH CARE POWER OF ATTORNEY – Recently enacted legislation in Virginia has authorized individuals to select any adult for hospital visitation and health care decisions. Therefore, a health care or medical power of attorney allows one’s partner regardless of gender to make medical decisions on your behalf in the event you are not able to do so due to incompetence or other incapacity. Properly drafted, a health care power of attorney can also ensure hospital visitation rights to the designated attorney-in-fact.

CANONS OF JUDICIAL CONDUCT: Should a judge ignore these legal realities, there is one other generally unknown protection available to same sex couples. This is found under Canon 3.B.5 of the Canons of Judicial Conduct for the Commonwealth of Virginia, which provides in relevant part:

“A judge “shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officials and others subject to the judge's direction and control to do so. . . .” (Emphasis supplied)

This is the only provision under current Virginia law where sexual orientation is a specifically a protected class. A judge that fails to abide by this non-discrimination directive should recuse himself/herself from the case. Failure to do so may subject a judge to possible disciplinary action.