15 April 2010

POTUS Obama issues Memorandum on Hospital Visitation Rights

I read the memo that Obama wrote in its entirety, and I have to disagree with all of the hoopla that's being made about it--not with anything that he said but with how people are characterizing this as such a monumental change, etc.

This is not an order; it's a memo, and there's quite a big difference between the two. If Obama wished to place impetus into his words, he would (or should) have issued an Executive Order, NOT a memorandum seeking advice from the Dept of HHS on how it should be doing its job. In other words, it's a request, a comment, a call to action--not the action itself.

Yet, people continue to create fanfare and hoopla and praise Obama for barely lifting a finger. IMHO, this is not NEARLY as big as people are making it out to be. Essentially, this is Obama saying something along the lines of, "yes...well, people shouldn't be discriminated against and they should be allowed to have visitation rights but I'm not going to force the issue and start ordering people & hospitals to comply with what I'd like to see happen...."

So just what does it all boil down to you ask, boys & girls? Try this on for size:

The Dept of Health & Human Svcs basically can tell Obama to bugger off; if Obama had issued an Executive Order, things would be *quite* different. But this is, quite literally, the LEAST POSSIBLE ACTION that POTUS could take w/ respect to their admin.

And that, as they say, is that.

[TEXT AFTER THIS POINT ADDED 16 April 2010 5:00am UTC -- you folks just couldn't deal with me writing a short post to my blog, could ya? ;-) ]

I've been accused by some of being factually incorrect in stating that Obama has not ordered the Director of the US Department of Health & Human Services. I linked to the Memorandum as published by the US White House Office of the Press Secretary; however, just to clear things up (because apparently, most folk haven't taken the time to click through and actually read what Obama wrote), here is what President Obama actually wrote in his memorandum (this is a direct quotation from the Memorandum over which everybody is making such a great, big fuss):

By this memorandum, I request that you take the following steps:
  1. Initiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy. You should also provide that participating hospitals may not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. The rulemaking should take into account the need for hospitals to restrict visitation in medically appropriate circumstances as well as the clinical decisions that medical professionals make about a patient's care or treatment.

  2. Ensure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care. Additionally, I request that you issue new guidelines, pursuant to your authority under 42 U.S.C. 1395cc and other relevant provisions of law, and provide technical assistance on how hospitals participating in Medicare or Medicaid can best comply with the regulations and take any additional appropriate measures to fully enforce the regulations.

  3. Provide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

You are hereby authorized and directed to publish this memorandum in the Federal Register.

[emphasis supplied; hyperlinks provided]

Now let's examine the language that President Obama used (please note that "emphasis supplied" means that I altered the appearance of the text by adding bold-face/italics to it; otherwise, apart from any formatting snafus, the text remains exactly as it was published by the White House Office of the Press Secretary):

As can be seen in the first sentence that is quoted, President Obama has requested that the Director of the US Department of Health & Human Services perform three actions, which he outlines. Within those three actions, he reiterates that he is requesting her to perform these actions. I think it's time to take a dictionary break:

re·quest

–noun
[ ]

–verb (used with object)
6. to ask for, esp. politely or formally: He requested permission to speak.
7. to ask or beg; bid (usually fol. by a clause or an infinitive): to request that he leave; to request to be excused.
8. to ask or beg (someone) to do something: He requested me to go.
–verb (used with object)
1. to put a question to; inquire of: I asked him but he didn't answer.
2. to request information about: to ask the way.
3. to try to get by using words; request: to ask advice; to ask a favor.
4. to solicit from; request of: Could I ask you a favor? Ask her for advice.
5. to demand; expect: What price are they asking? A little silence is all I ask.
6. to set a price of: to ask $20 for the hat.
7. to call for; need; require: This experiment asks patience.
8. to invite: to ask guests to dinner.
9. Archaic. to publish (banns).

–verb (used without object)
10. to make inquiry; inquire: to ask about a person.
11. to request or petition (usually fol. by for): to ask for leniency; to ask for food.

or·der

–noun
[ ]

–verb (used with object)
37. to give an order, direction, or command to: The infantry divisions were ordered to advance.
38. to direct or command to go or come as specified: to order a person out of one's house
39. to prescribe: The doctor ordered rest for the patient.
40. to direct to be made, supplied, or furnished: to order a copy of a book.
41. to regulate, conduct, or manage: to order one's life for greater leisure.
42. to arrange methodically or suitably: to order chessmen for a game.
43. Mathematics . to arrange (the elements of a set) so that if one element precedes another, it cannot be preceded by the other or by elements that the other precedes.
44. to ordain, as God or fate does.
45. to invest with clerical rank or authority.

–verb (used without object)
46. to give an order or issue orders: I wish to order, but the waiter is busy.

di·rect

–verb (used with object)
1. to manage or guide by advice, helpful information, instruction, etc.: He directed the company through a difficult time.
2. to regulate the course of; control: History is directed by a small number of great men and women.
3. to administer; manage; supervise: She directs the affairs of the estate.
4. to give authoritative instructions to; command; order or ordain: I directed him to leave the room.
5. to serve as a director in the production or performance of (a musical work, play, motion picture, etc.).
6. to guide, tell, or show (a person) the way to a place: I directed him to the post office.
7. to point, aim, or send toward a place or object: to direct radio waves around the globe.
8. to channel or focus toward a given result, object, or end (often fol. by to or toward ): She directed all her energies toward the accomplishment of the work.
9. to address (words, a speech, a written report, etc.) to a person or persons: The secretary directed his remarks to two of the committee members.
10. to address (a letter, package, etc.) to an intended recipient.

–verb (used without object)
11. to act as a guide.
12. to give commands or orders.
[emphasis supplied]
[source: Dictionary.com, an Ask.com service]

So as we can see, there is a clear—and significant—difference between the words "request," "order," "ask," and "direct": to request and to ask are synonymous with each other; likewise, to order and to direct are synonymous with each other. With the first group, the connotation is such that one is seeking another to perform an action, without having authority to require such action of said individual. In other words, the decision on whether or not such action is to be undertaken is left with the person upon whom such action is being requested.

Contrary to the non-authoritative, permission-seeking words "request" and "ask," the words "order" and "direct" connote authority from the individual issuing such directives such that one can be fairly certain that the missives being commanded will be carried out. In other words, the decision on whether or not such action is to be undertaken is left with the person who is commanding such action.

I now bring your attention to the very last paragraph and sentence of Obama's Memorandum:

You are hereby authorized and directed to publish this memorandum in the Federal Register.

[emphasis supplied]

Unlike the earlier paragraphs, where Obama requests the Director of HHS to undertake certain actions, here we see Obama directing the Director of HHS to take certain action.

Clearly, President Obama knows the difference in meanings among these words and has chosen the wording of his Memorandum very carefully. If you have any doubt as to this, then ask yourself, "Why did he only request that the HHS Director take the enumerated steps but direct her to perform other actions?" The answer should then become quite obvious, as I've implied above: President Obama has done the very least he could possibly do in order to throw some bread crumbs to the LGBTQ community, in an effect to begin soliciting funds for his fellow politicians so that they all may return to their thrones of power in this coming November's mid-term election.

I'm not going to get into the fact that Candidate Obama promised, upon his election, a repeal of DADT and a repeal of DOMA. To date, neither of his promises have been given even a scintilla of veracity by him.

Oh, and before I get to my next point, I do need to bring this to your attention once again (even though I've hyperlinked to the text and quoted it above, I set it apart here for your inspection).
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
And there you have it, in black & white. President Obama states, quite clearly, that his intention is not to actually confer upon any individual any right[s] or benefit[s] that can be enforced by any sort of legal mechanism, whatsoever.

If there is any doubt in anyone's minds that President Obama has absolutely no intention of having the Director of the US Department of Health & Human Services effectuate any of his "requests" then perhaps this will prove more probative in convincing any such individual.

In his Memorandum, President Obama quotes four (4) distinct sections of US law:

42 U.S.C. 1395x
42 CFR 482.13
42 CFR 489.102(a) and
42 U.S.C. 1395cc

Let's take a brief, quick look at these sections of United States Law:

42 U.S.C. 1395x consists entirely of definitions used in "The Public Health and Welfare" section of United States law (Title 42 of the United States Code)

42 CFS 482.13, to the best of my knowledge, does not exist.

42 CFR 489.102(a) is a very short (three-columns) section of law pertaining to the requirements of providers of health services who accept payment from Medicaid and/or Medicare, particularly with respect to advanced directors. Unlike health proxies, advanced directives are generally used to confer upon another individual their wishes with respect to remaining or being removed from life support, should they ever find themselves in such a situation. Advances directives therefore usually are very limited forms of a health care proxy in that there is only one decision to be made: whether or not to continue life support for an individual (usually in some form of a vegetative state) who is unable to make that determination for themself. Oh, and about 1/3 of the text in these three columns provides exemptions from adhering to the wishes, desires, commands, directives, and orders from such health care proxy with respect to an advanced directive on the grounds that it is contrary to the provider's religious beliefs.

Finally, 42 U.S.C. 1395cc deals with billing agreements with health care providers who accept Medicaid and/or Medicare as a method of payment for the health services they render.

So, what do we really have here?

We have:

President Obama, approximately six months before the mid-term elections, throwing a few breadcrumbs to the LGBTQ community, as political strategy for fundraising efforts that will enable the return of the Kings and Queens in Congress to their respective thrones, asking the Director of the US Department of Health & Human Services to implement some vague changes that 95% of the nation agree should have been made ages ago, referencing some pretty irrelevant sections of the laws of the United States of America and perhaps even throwing in another reference just to make it look better, all the whilst stating that he has absolutely zero (0) intention of actually making any real changes that would actually benefit or confer a right upon anyone with respect to what he's requesting the US HSS Dep't director to do, and then commanding her to publish his so-called intentions.

In other words, what we have here is a big, fat, bulking heap of ...

ZERO!

Now do you folks get it, and why all of the fanfare, hoopla, and parades surrounding this are really, truly, honest-to-goodness, over nothing?
[Time Stamp - insertion of new section completed 16 April 2010 6:45am UTC]