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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
Whether physicians personally agree or support LGBT rights should be a non-issue when it comes to providing the best possible care for all patients.
With the release of the momentous opinion by the Supreme Court in Obergefell v. Hodges defending the legality of same-sex marriage, many physicians and medical practices may be wondering how this ruling may affect them. Other than those medical professionals who are themselves personally impacted by the decision, the medical profession should be aware of how to properly handle same-sex marriage issues and the lesbian, gay, bisexual, and transgender (LGBT) community within the practice.
Most medical practices have patients who are part of the LGBT community, whether the patients have identified themselves in this manner or not. For physicians, it's important to know and understand this population of patients and what their particular medical needs may be. This is particularly true since research shows that LGBT people are more likely to avoid or delay care than their heterosexual counterparts.
A study UCLA published in the American Journal of Public Health, found that only 9 percent of U.S. academic medical practices have procedures for connecting patients to LGBT-competent physicians, and only 4 percent had policies for identifying those physicians. In addition, only 15 percent had lists of LGBT-competent physicians. This lack of coverage for the LGBT community could be a business boon for practices that are not aware there is a need to service the LGBT community.
At the same time, practices must be aware of health disparities for LGBT individuals, who can have an increased risk of developing cancer and contracting sexually transmitted diseases, such as HIV, according to experts. Experts report that LGBT individuals are often more likely to drink alcohol, smoke, use drugs, be overweight and attempt suicide and engage in other risky behaviors.
Physicians should view this underserved population as one that needs their attention and examine how welcoming their practice appears to the LGBT community. Educating physicians and staff, posting nondiscrimination statements and taking other steps to invite the LGBT community to the practice may be something for practices to consider.
Once LGBT patients are in your practice, there may be some additional training and legal review needed to address issues specific to this community. One example of this is HIPAA. Although most practices have HIPAA guidelines in place, staff may not know how same-sex couples are to be treated when making decisions about sharing protected health information (PHI). Guidelines recently released from HHS clarify that the term "spouse," as used in the Privacy Rule, must be interpreted to include individuals who are in a legally valid same-sex marriage sanctioned by a state, territory or foreign jurisdiction. The term "marriage" was extended to include same-sex marriages and "family member" includes the descendents of those marriages. Although PHI can still only be disclosed in accordance with HIPAA standards, same-sex couples should be treated the same as spouse and family members of non-same-sex couples.
Another issue that arises is how to handle untraditional partners when it comes to healthcare decisions. One document which the LGBT community (as well as others in non-married relationships) look to, and which physicians can rely upon when determining with whom information can be shared, is the Durable Power of Attorney (POA) for Healthcare. This type of POA allows a patient to designate another individual to make certain medical decisions on their behalf in the event of a medical emergency and allows the designated advocate to receive medical information about the patient, to sign documents on the patient's behalf and to make decisions regarding all aspects of the patient's medical treatment. This document is intended to avoid potential conflict or confusion as to whom doctors can trust to make decisions in the best interest of a patient.
Durable POAs are especially important for LGBT couples since the traditional "immediate family" a physician may look to for decision making has not necessarily included same-sex/non-traditional partners in the past. Without the POA in place, this can mean a patient's partner cannot discuss medical care with a doctor or visit a patient in a restricted area at times reserved for spouses or family members. While getting married will now take care of these issues for many same-sex partners, the medical POA can assist non-married partners to participate in their partner's medical care and avoid the need for permission from other family members.
This is an exciting time for LGBT rights in this country. Whether physicians personally agree or support LGBT rights should be a non-issue when it comes to providing the best possible care for all patients. And, as always, practices must continue to meet their legal obligations and to respect the rights of all patients.