CMS Issues Proposed Revisions to Medicare Regulations and State Survey Agency Guidance with Respect to Same-Sex Spouses

Written By Joanne Ceballos

On December 12^th the Centers for Medicare and Medicaid Services issued a proposed rule to revise Medicare regulations to afford same-sex spouses equal rights in Medicare and Medicaid participating facilities.  The proposed changes to Medicare conditions of participation (CoPs) for providers, conditions for coverage (CfCs) for suppliers, and requirements for long-term care facilities, follow the U.S. Supreme Court’s decision in United States v. Windsor, 570 U.S.12, 133 S.Ct. 2675 (2013), finding unconstitutional a section of the federal Defense of Marriage Act that prohibited recognition, in federal statutes and regulations, of same-sex marriages lawfully entered into or recognized under state law.  The proposed revisions to certain regulatory definitions and patient rights’ provisions are intended to clarify that where state law or facility policy provides or allows certain rights or privileges to a patient’s opposite-sex spouse, a patient’s same-sex spouse must be afforded equal treatment if the marriage is valid in the jurisdiction in which it was celebrated.  With a majority of states recognizing same-sex marriage, the proposed rule places same-sex spouses on equal footing with opposite-sex spouses when dealing with Medicare and Medicaid providers in most circumstances.  The text of the proposed regulations can be viewed by clicking here. 

  

On the same date CMS’s proposed rule was published in the Federal Register, CMS issued guidance to state survey agency directors clarifying references in certain sections of the State Operations Manual as follows:

“spouse” means an individual who is married to another individual as a result of marriage lawful where it was entered into including a lawful same-sex marriage, regardless of whether the jurisdiction where the provider or supplier providing health care services to the individual is located, or in which the spouse lives, permits such marriages to occur or recognizes such marriages;

“marriage” means a marriage lawful where it was entered into, including a lawful same-sex marriage, regardless of whether the jurisdiction where the provider or supplier providing health care services to the individual is located, or in which the spouse lives, permits such marriages to occur or recognizes such marriages;

“family” includes, but is not limited to, an individual’s “spouse” (see above); and

“relative,” when used as a noun, includes, but is not limited to an individual’s “spouse” (see above).

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[W]here CMS regulations explicitly require an interpretation in accordance with State law, wherever the text of a regulation or associated guidance uses the above terms or includes a reference to a patient’s or resident’s “representative,” “surrogate,” “support person,” “next-of-kin,” or similar term in such a manner as would normally implicitly or explicitly include a spouse, the terms are to be interpreted consistent with the guidance above.

The text of CMS’s guidance to state survey agency directors can be viewed by clicking here.

While CMS is accepting comments on the proposed rule through February 10, 2015, the guidance to surveyors states that is effective immediately, so the affected providers, namely, hospitals, psychiatric hospitals, critical access hospitals, long term care facilities, hospices, and organ procurement organizations, must promptly revise their policies and procedures to conform to CMS guidance.