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From Health Law Daily, August 29, 2013

HHS guidance implements Supreme Court decision in favor of same-sex couples

By Sarah E. Baumann, JD

HHS has issued its first guidance based on the U.S. Supreme Court’s decision in U.S. v Windsor, which requires the federal government to recognize same-sex marriages that are valid under state law. Based on this decision, same-sex spouses of private Medicare beneficiaries residing in skilled nursing facilities (SNFs) will now have access to coverage in the same facilities as their spouses, just as heterosexual married couples already have.

Medicare Advantage, or Medicare Part C, beneficiaries who qualify for SNF coverage are generally entitled to receive care in the same SNF where their spouses reside (SSA sec. 1852(l)). Prior to the Windsor decision, the government did not recognize same-sex unions; as a result, same-sex spouses were no more entitled to reside in a particular facility than any other Medicare Advantage beneficiary. However, Windsor determined that the definition of marriage as a legal union between a man and a woman in the Defense of Marriage Act “undermine[d]…the…significance of state-sanctioned same sex marriages” by requiring the federal government not to recognize such unions.

As a result, CMS interprets the term “spouse” to apply to lawfully married same-sex individuals, whether or not they are domiciled in the state where they were married. CMS is thus requiring Medicare Advantage organizations to provide same-sex spouses with services in an SNF in which the other spouse currently resides in the same way that they would provide coverage to an opposite-sex couple. The guidance, issued August 29, 2013, is effective immediately.

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