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From Health Law Daily, December 12, 2014

CMS to update regulations to comport with same-sex spouse eligibility

By Harold M. Bishop, J.D.

CMS has proposed that certain definitions and patient’s rights provisions in its regulations be revised to ensure that legally married same-sex spouses are recognized and afforded equal rights in Medicare and Medicaid-participating facilities. The proposed revisions will be to the agency’s conditions of participation (CoPs) for providers, conditions for coverage (CfCs) for suppliers, and requirements for long-term care facilities. The regulatory revisions will ensure that these requirements are consistent with the U.S. Supreme Court’s 2013 decision in U.S. v. Windsor and with HHS’ policy of treating same-sex marriages on the same terms as opposite-sex marriages (Proposed rule, 79 FR 73873, December 12, 2014).

Windsor decision. In U.S. v. Windsor570 U.S. 12, 133 S. Ct. 2675 (2013), the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional because it violated the Fifth Amendment’s equal protection clause (see DOMA doomed under constitutional equal protection guarantees). Section 3 of DOMA provided that, in determining the meaning of any U.S. law or regulation, the word “marriage” meant only a legal union between one man and one woman as husband and wife, and the word “spouse” could refer only to a person of the opposite sex who was a husband or a wife. The Supreme Court concluded that section 3, by prohibiting federal recognition of same-sex marriages that were lawfully entered into or recognized under state law, undermined both the public and private significance of state sanctioned same-sex marriages and disparaged and injured those whom the state, by its marriage laws, sought to protect.  Because of the Supreme Court’s opinion in Windsor, the federal government is now permitted to recognize the validity of same-sex marriages when administering federal statutes and programs.

CMS’ regulatory review. Prior to making this proposal, CMS conducted a review of its regulations for instances in which they draw on state law for purposes of defining “representative,” “spouse,” and similar terms in which reference to a spousal relationship is explicit or implied. CMS identified nine provisions that needed to be revised. The provisions are located in the CoPs and CfCs for Ambulatory Surgical Centers, Hospices, Hospitals, Long-Term Care facilities, and Community and Mental Health Centers.

CMS policy. As a policy matter, CMS has advised all state survey agencies that terms such as “spouse,” “marriage,” “family,” and “representative” should be interpreted to include a same-sex spouse, regardless of where the couple resides or the jurisdiction in which the provider or supplier providing health care services to the individual is located. If the same-sex marriage was lawful where entered into, it would be recognized.

CMS also notes that that Medicaid eligibility and CoP/CfC policies addressed in its proposed rule are administered by different statutes and are administered by state Medicaid agencies and CMS, respectively. As such, on September 27, 2013, CMS issued Windsor-related guidance regarding Medicaid eligibility determinations (SHO #13–006, see CMS issues guidance to states on same-sex marriages in Medicaid and CHIP), and on May 30, 2014, guidance on the implications of the Windsor decision for state flexibility regarding the recognition of same-sex marriages in determining eligibility for Medicaid and the Children’s Health Insurance Program (SHO #14–005, see Rights of same-sex married couples clarified).

Comments on the proposed rule may be provided through February 10, 2015.         

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