LAWS RELATED TO LGBTQ+ HEALTHCARE
LGBTQ+ individuals continue to face unique legal challenges due to their frequent inability to be recognized as their identified gender and/or to formalize their relationships. This can leave many individuals and families feeling invisible in healthcare settings. In order to provide effective care and to keep up to date with changing laws and policies, healthcare professionals should educate themselves about such laws, policies, and requirements needed to protect and ensure quality care for LGBTQ+ patients.
Expanded Health Insurance Laws
The federal Affordable Care Act (ACA), passed in 2015, contained certain provisions important for LGBTQ+ patients and their families, such as:
- Health insurance plans may not exclude transition-related care for transgender patients.
- Coverage may not be denied based on pre-existing conditions (important, for instance, for patients with a pre-existing HIV/AIDs diagnosis).
- Insurance coverage must be made available regardless of employment status (important since protection from employment discrimination is not guaranteed for LGBTQ+ individuals).
- Expanded coverage is available (in most states) for LGBTQ+ partners and children (depending on the state’s definition of “family members”).
- Certain coverages are mandated for preventive services and screening, mental health, and substance abuse treatment.
- Protection is provided against discrimination based on sexual orientation and gender identity.
(Medina & Mahowald, 2020)
Healthcare providers must stay current on changes to the ACA and other healthcare laws and policies affecting the healthcare rights of their LGBTQ+ patients. Clinicians and providers can also assist in advocating for quality care by supporting policies that protect LGBTQ+ rights and referring patients who have questions about care or health insurance coverage to a social worker or case manager. (See “Resources” at the end of this course for more on state laws and policies.)
LGBTQ+ Cultural Competency
In 2015, the D.C. Council Committee on Health and Human Services voted unanimously to approve the LGBTQ Cultural Competency Continuing Education Amendment Act of 2015. This act requires all healthcare providers to complete cultural competency training on the unique culture and healthcare needs of LGBTQ+ patients. Some U.S. states have mandated similar measures (University of Wisconsin Public Health Institute, 2020).
Professional Association Policies and Position Statements
In order to protect the rights of LGBTQ+ patients, various professional and oversight organizations have also adopted policies, position statements, and/or requirements. Some of these are included below.
AMERICAN NURSES ASSOCIATION (ANA)
The ANA (2018) published the following position statement:
The ANA condemns discrimination based on sexual orientation, gender identity, and/or expression in healthcare and recognizes that it continues to be an issue despite the increasing recognition and acceptance of LGBTQ+ populations. Many LGBTQ+ individuals have reported experiencing some form of discrimination or bias when accessing healthcare services. Persistent societal stigma, ongoing discrimination, and denial of civil and human rights impede individuals’ self-determination and access to needed healthcare services, leading to negative health outcomes including increased morbidity and mortality. Nurses must deliver culturally congruent, safe care and advocate for LGBTQ+ populations.
AMERICAN PHYSICAL THERAPY ASSOCIATION (APTA)
The APTA (2019) published the following nondiscrimination statement:
The American Physical Therapy Association opposes discrimination on the basis of race, creed, color, sex, gender, gender identity, gender expression, age, national or ethnic origin, sexual orientation, disability, or health status.
AMERICAN OCCUPATIONAL THERAPY ASSOCIATION (AOTA)
The AOTA’s vision statement (2021) affirms its commitment to diversity, equity, and inclusion, as follows:
AOTA is committed to creating an environment where all people within our professional community are valued and able to give their best in the communities where they live and work. AOTA strives to recognize and uplift the diversity of our profession and is committed to creating opportunities to foster inclusivity, participation, and representation. We will act with intention and live our values to be inclusive, equitable, just, and accountable in this work.
THE JOINT COMMISSION (TJC)
The Joint Commission ambulatory care standards address discrimination and a patient’s right to have an advocate: “As a patient, you have the right to be informed about and make decisions regarding your care. You also have the right to care that is free from discrimination as well as the right to have a patient advocate” (TJC, 2019).
In addition, The Joint Commission (2011) earlier published an extensive field guide for hospitals to meet the needs of LGBT patients. This field guide points out potential barriers to care that LGBT individuals might face in the hospital setting, such as:
- Refusal of care
- Delayed or substandard care
- Mistreatment
- Inequitable policies and practices
- Little or no inclusion in health outreach or education
- Inappropriate restrictions or limits on visitation
These guidelines have created awareness to the needs of LGBTQ+ patients and outlined a roadmap for healthcare organizations to follow as they create and implement new policies and make change for a more inclusive healthcare environment for all patients. The Joint Commission does acknowledge, however, that their 2011 Field Guide refers to some regulations and includes some definitions and terms that have since become outdated (Cordero & Tschurtz, 2022).
THE JOINT COMMISSION FIELD GUIDE RECOMMENDATIONS
- Hospitals must prohibit discrimination based on sexual orientation and gender identity or expression, and this requirement applies regardless of local law.
- Hospitals may not refuse care because of sexual orientation or gender identity or expression.
- Hospitals should recognize same-sex partners as the patient’s family, including recognizing same-sex marriages, even if not recognized by the law of the state in which the hospital is located.
- Patients may designate same-sex partners as surrogate decision-makers, including in advance directives.
- Hospitals should involve same-sex parents in their children’s care, even those parents who lack legal custody.
- Hospitals should not permit a patient’s parents who disapprove of the patient’s same-sex relationship from excluding the patient’s partner against the patient’s wishes.
- A patient may designate a same-sex partner as family for visitation and other purposes.
- Healthcare providers should use neutral language when taking sexual histories.
- Hospitals should use a transgender patient’s preferred name even if not the legal name.
- Hospitals should refer LGBT patients to welcoming healthcare providers for follow-up.
- Hospitals should maintain the confidentiality of information about sexual orientation and gender identity or expression.
- Hospitals should use available research data to understand LGBT community needs.
- Hospitals should consider modifying data systems to permit the capture of sexual orientation and gender identity or expression information in electronic medical records.
- Intake forms should be inclusive of LGBT patients.
- Hospitals should create a welcoming environment for LGBT staff and patients.
- LGBT hospital staff should be protected from discrimination.
- Key terms, such as family, gender expression, gender identity, and sexual orientation, are defined in ways affirming to LGBT people, and the LGBT community’s preferred and expansive phraseology important for transgender people—“gender identity or expression”—is adopted throughout.
(TJC, 2011)
Other Legal Concerns of LGBTQ+ Patients
While not all jurisdictions provide specific legal protections for LGBTQ+ individuals, healthcare professionals and institutions can discuss and address various legal issues with patients.
LIVING WILL AND MEDICAL DIRECTIVES
LGBTQ+ individuals, as with all patients, should file documents outlining their wishes concerning life-sustaining medical care, funeral arrangements, and organ donation. This is especially important as they grow older. Each state may have different document names or requirements. Documents may be called:
- Living will
- Medical directive
- Healthcare directive
- Directive to physicians
- Declaration regarding healthcare
The “District of Columbia Declaration” is the District of Columbia’s living will. It allows individuals to state their wishes about medical care in the event that they develop a terminal condition and can no longer make their own medical decisions. The declaration goes into effect when a patient’s physician and one other physician certify that the patient has an incurable condition that will lead to their death, with or without the use of life sustaining medical care, and that life-sustaining procedures would serve only to postpone their death.
DURABLE POWER OF ATTORNEY FOR HEALTHCARE
A durable power of attorney for healthcare (or healthcare proxy) is a legal document that allows a designated person to make medical decisions for another person in the event they are unable to do so themselves. For an LGBTQ+ patient, this is a very important document that can protect their wishes at a time when they may not be able to speak for themselves. Same-sex partners should file these documents and make their wishes known to their family members as well. This is a legal document that should be kept on file with the healthcare facility and with the person who is named as the healthcare proxy.
In the District of Columbia, specific forms are available to create and notarize a durable power of attorney to keep on file as a legal document. (See “Resources” at the end of this course.)
HOSPITAL VISITATION AUTHORIZATION
A hospital visitation authorization allows a patient to name specific individuals they wish to visit them in the event that they are no longer able to communicate their wishes.
For participating hospitals, a Centers for Medicare and Medicaid Services rule ensures visitation rights for family members, partners, and spouses of all patients, including LGBTQ+ individuals. Hospitals are required to inform each patient (or support person, where appropriate) that they may receive the visitors they designate, including, but not limited to, a spouse, a domestic partner (including a same-sex domestic partner), another family member, or a friend (CMS, 2010).
The Joint Commission (Cordero & Tschurtz, 2022) also supports visitation policies that give patients the right to choose who may visit them. This includes family members, spouses, domestic partners, or other visitors of the patient’s choosing.
AUTHORIZATION FOR CONSENT TO MEDICAL TREATMENT OF A MINOR
Medical treatment of a minor requires authorization from the legal parents. In states that do not recognize both parents in a same-sex couple as legal parents, it is critical to file the appropriate state form to address this issue. Such a form may be helpful in times when emergency care for a child of a same-sex couple is needed. For couples who are planning to have children, this document should be completed before the birth mother goes into the hospital. Most hospitals honor this authorization.
In the District of Columbia, the law reads:
A parent, legal guardian, or legal custodian may authorize an adult person, in whose care a minor has been entrusted, to consent to any medical, surgical, dental, developmental screening, and/or mental health examination or treatment, including immunization, to be rendered to the minor under the supervision or upon the advice of a physician, nurse, dentist or mental health professional licensed to practice in the District of Columbia, provided there is no prior order of any court in any jurisdiction currently in effect which would prohibit the parent, legal guardian, or legal custodian from exercising the power that they seek to convey to another person. Medical, surgical, and dental treatment or examination may include any X-ray or anesthetic required for diagnosis or treatment (Council of the District of Columbia, 2022).
DURABLE POWER OF ATTORNEY FOR FINANCES
A durable power of attorney for finances designates another person (agent) to take care of finances when a person is not able to do so for themself. This may include paying medical bills, cashing checks, and receiving benefits.
WILL
A will is a legal document that allows a person to designate who will receive any property when they die. If a person dies without a will, their property is automatically distributed to their legal heirs. A will is important for anyone to have, but especially important for same-sex partners, since they may not be recognized as a legal heir in all states.
“KNOW YOUR RIGHTS” IN WASHINGTON, DC
In the District of Columbia, specific laws and regulations may apply to the LGBTQ+ community, including these sections of the DC Code:
- 1-529, Spouse equity
- 1-612.31 and 32(b), Voluntary leave transfer program
- 1-621-07, 623.10 and 33, Health benefit coverage
- 2-1401, Human rights definitions
- 4-201.01, 205.22, 213.01, 218.01, 1301.02, Public assistance support actions
- 7-231-08, 18, 24, Vital records—Birth and marriage registration
- 7-1601, AIDS health care definitions
- 16-1001, Intrafamily proceedings definitions
- 16-2345, Changes to new birth record upon marriage or determination of natural parents
- 16-2501, Change of name or gender
- 21-2113, Uniform general power of attorney, related to personal and family maintenance
- 21-2202, Health-care decisions
- 22-501, Criminal offenses and penalties concerning bigamy
- 22-3701, Bias-related crime definitions
- 23-154, Care for LGBT seniors and seniors with HIV Amendment Act of 2020
- 31-3303.07, Group health insurance
- 32-501, Family and medical leave
- 32-701, 702(i), 704, 705, 706, Health care benefits expansion
- 32-1201, Parental leave definitions
- 32-1501, Worker’s compensation definitions
- 46-405, Illegal marriages entered into in another jurisdiction
- 50-1501.02(e)(4), Adding joint ownership to registration of motor vehicles
Specific acts and amendments to acts include:
- Bias-Related Crime Act of 1989
- Omnibus Domestic Partnership Equality Amendment Act of 2008 (Law 17-231)
- Jury and Marriage Amendment Act of 2009
- Religious Freedom and Civil Marriage Equality Amendment Act of 2009
(Council of the District of Columbia, 2022)