Compliance with the NJ Domestic Partnership Act: A Primer for Health Care Facilities

September 27, 2004

The following article is adapted from a chapter of the book, A Legal Guide for New Jersey Domestic Partners, available online from the author's web site, http://www.njdomesticpartnership.com. The book is to be published in paperback format in the fall of 2004.

As part of the findings and declarations included in the Domestic Partnership Act, the New Jersey Legislature clearly stated its recognition that the lack of any legal right to make emergency medical decisions for a partner was among the greatest indignities suffered by couples that were unable to legally marry.

Although that sentiment is debatable, it is a fact that same-sex couples in particular have often been prevented from making the same kind of life-and-death health care decisions that married couples take for granted.

Even though more and more hospitals and health care facilities have independently implemented policies allowing domestic partners to visit each other and to participate in health care decisions, law did not back such policies. Furthermore, since these are policies and not laws, unsympathetic staff can rescind them.

Rights Provided Under the DPA

With the enactment of the Domestic Partnership Act, many of the health care directives that domestic partners had to contractually provide are now, in part, embodied in the law. However, sophisticated domestic partners will have additional documents that will supplement the rights provided under the Act.

In addition to the specific rights related to health care that are created in the DPA, the Act has amended the New Jersey Law Against Discrimination (NJ LAD), making discrimination on the basis of domestic partnership illegal. This means that hospitals and other health care facilities must examine their policies to ensure that they do not violate NJ LAD.

Recently, the New Jersey Department of Health and Senior Services released an advisory letter to all hospitals and other health care facilities advising them on the health care and visitation rights of registered and unregistered domestic partners. Thus, health care providers are now on notice of the rights of registered and unregistered domestic partners.

Registered Versus Unregistered Partners

Most of the rights and obligations under the Domestic Partnership Act are predicated on the couple becoming registered. Upon registration, the partners are provided with copies of an official Certificate of Domestic Partnership, which has a state seal.

The DPA also recognizes the legal relationship of couples that have registered under Vermont's civil union law, or other state's domestic partnership laws. These couples do not need to re-register in New Jersey but will be able to show some other form of proof in order to establish their rights in New Jersey. These couples have, at least, all of the rights and responsibilities of couples that have registered in New Jersey.

The DPA does not grant recognition to same-sex married couples and it is unclear whether couples married in Massachusetts will be recognized in New Jersey. Until the legal status of such couples is defined in New Jersey, they should be afforded at least the same rights as registered domestic partners.

As in marriage, registration of a domestic partnership creates a legal status that can only be terminated by a court. Registered domestic partners continue to have rights under the Act even if separated, and they should be viewed in exactly the same manner as a married couple that has separated but has not yet divorced.

Health care providers should be aware that in an emergency, they are required to treat unregistered couples as if they were registered. However, this is limited to special circumstances, described below.

Providers should also be aware that, except in the emergency scenario envisioned by the DPA, they are entitled to ask for proof of registration, if there is any doubt as to the validity of the relationship, However, to avoid violating the New Jersey Law Against Discrimination, providers must ensure that their treatment of domestic partners does not differ from their treatment of married couples in similar circumstances.

Emergency Treatment of Unregistered Partners

In a medical emergency, unregistered domestic partners are to be treated as registered, allowing one partner to accompany the other while being transported to the hospital. This emergency recognition also allows an unregistered partner the same visitation rights as any other immediate family member.

In order to claim this emergency status, both partners, or one of the partners if the other is legally or medically incapacitated, must tell the emergency care provider that they are unregistered domestic partners. Although the Act specifically requires that he or she tell the provider that the two have met the requirements for establishing a domestic partnership other than registration, they are not required to show any proof of eligibility.

Immediate Family

For many health care-related purposes, the DPA has expanded the definition of immediate family to include a domestic partner, the domestic partner's parents and adult children. Although the Act does not specifically mention a domestic partner's minor children, this is most likely an oversight, and minor children should be considered immediate family.

HIPAA Disclosures

The HIPAA regulations restrict the release of personal medical information to a patient's personal representative, among others. Because HIPAA defers to state law, a provider should consider a registered domestic partner as the patient's personal representative, on the same basis as an opposite-sex spouse.

The release of personal medical information about children is more problematic. In many cases, a same-sex partner is the custodial parent of a child but their partner has no formal legal rights over the child unless there has been a formal adoption.

HIPAA allows the medical facility to use its judgment in releasing information in these circumstances. Thus, if it would be appropriate to release information to a stepfather or stepmother, it would be similarly appropriate to release a child's medical information to the domestic partner of the child's parent.

Visitation Rights

Registered domestic partners are now entitled to the same visitation rights in hospitals and other health care facilities as married spouses. The right to visit extends to all immediate family members, as that is now defined under the Act.

A registered domestic partner must be allowed to visit his or her hospitalized partner unless one or more of the following conditions apply:

• The facility does not allow any other visitors;
• The staff has reasonably determined that the visitor's presence would endanger the health or safety of a patient, a staff member, another visitor, or would cause significant disruption; or
• The patient has indicated that he or she does not want the partner to visit.

The health care facility, however, is entitled to establish reasonable visitation rules and restrictions, including the right to limit hours and number of visitors, so long as these are equally applied to all family members.

Some domestic partners have family members who they do not wish to visit in a hospital or other health care setting. They may make their wishes known verbally, or they may have already prepared a document known as a hospital visitation directive, which lists the persons the patient does or does not want to visit them.

When a patient is admitted, the admissions office should enquire as to whether the patient has prepared such a directive. If they have not, the facility may want to provide the patient or his or her representative with a form on which they can list allowed or prohibited visitors.

Designating Health Care Representatives

Registered domestic partners may now designate each other as their health care representative, on the same basis as a married spouse. This designation remains in place until the partnership is legally terminated.

Partners may vary this designation by creating other forms of advance directives, such as a medical power of attorney or a living will.

Where there is no proxy directive, the Act does not explicitly provide that a person's domestic partner has any automatic right to be so designated. However, based upon its reading of the legislative intent, the Department of Health and Senior Services has indicated its support for granting the right to make decisions on behalf of an incapacitated partner on the same basis as for a married spouse. This certainly seems to be the intent of the DPA.

Miscellaneous Consents

The DPA allows a registered domestic partner to certain give consents on behalf of a deceased or legally incompetent partner, on the same basis as a married spouse. This includes the right to give consent to disclose medical records if a partner is known or suspected to have AIDS or HIV infection, the right to consent to an autopsy or necropsy, and the right to consent to tissue and organ donation.

Disposition of Remains

In the absence of actual notice of a contrary intent by the deceased, the DPA gives a registered domestic partner priority over all other family members when it comes to consent to donate organs and/or tissue. After removal, the deceased's body will be returned to his or her partner for disposition of the remains.

Unfortunately, if the deceased partner had signed an organ donor card, the DPA does not give the registered partner rights to claim the remains.

If a medical facility is encouraging organ or tissue donation by making organ donation cards available, it should consider providing space on this document to indicate disposition of remains.

Joint Liability for Medical Expenses

In general, a domestic partner is not liable for the other's debts, whether accumulated before registration or taken on in his or her name during the partnership. Registered partners can, however, contractually agree to assume joint responsibility for each other's prior debts and may also jointly contract for new debts. Among the debts that couples can take on either jointly or individually is medical expenses.

If one partner defaults on an individual debt, the creditor may only sue that partner, and may only seek a judgment against that partner's property only. If, on the other hand, the partners agree to be jointly liable for a debt, then either (or both) may be sued, and any judgment may be collected from their individual as well as their jointly owned assets.

As one of the requirements for registration, domestic partners agree to provide for each other's basic living expenses during the duration of the partnership. The Act defines basic living expenses to include the cost of health care, if some or all of the cost is paid as a benefit because a person is another person's domestic partner. What isn't clear from this definition is whether this means that a partner is responsible for medical care only if it is a benefit of employment.

Because of the limitations on joint liability for debts, and because of the uncertainly as to whether couples can be held responsible for each other's medical expenses, health care providers should consider revising their intake forms to allow domestic partners to jointly contract for medical debts.

Compliance Action Plan

Because the Domestic Partnership Act affects patient care in numerous ways, health care facilities, particularly hospitals and residential medical facilities, should consider the following implementation plan:

1. Revise All Anti-Discrimination Policies Statements. Since the Act amends the New Jersey Law Against Discrimination, making it illegal to discriminate on the basis of domestic partnership, health care facilities must revisit and accordingly revise these policies and statements to ensure compliance with LAD. Once the policies are revised, they should be circulated to all employees, who should be required to sign an acknowledgment that they have read and agree to abide by the revised policies.
2. Review Patient Procedures, Policies and Forms. All policies and procedures regarding patient intake, management, discharge, and related areas should be reviewed and revised to ensure compliance with both the Domestic Partnership Act and the revised Law Against Discrimination.
3. Appoint a Domestic Partnership Contact Person. This person or persons should be familiar with the proofs of registration that may be provided and should be prepared to make decisions about the validity of domestic partnerships in questionable circumstances.
4. Review Financial Procedures and Practices. The health care facility's financial department should review its billing procedures and practices to ensure that it is able to collect from both members of a domestic partnership.