Medicare and Medicaid Program; Revisions to Certain Patient’s Rights Conditions of Participation and Conditions for Coverage Overview

The Centers for Medicare & Medicaid Services (CMS) issued a proposed rule to revise selected conditions of participation (CoPs) for providers, conditions for coverage (CfCs) for suppliers, and requirements for long-term care facilities, to ensure that certain requirements are consistent with the Supreme Court decision in United States v. Windsor, 570 U.S. 12, 133 S.Ct. 2675 (2013) and U.S. Health and Human Services policy.

Background

In United States v. Windsor, the Supreme Court held that section 3 of the Defense of Marriage Act (DOMA) is unconstitutional because it violates the Fifth Amendment (See Windsor, 133 S. Ct. 2675, 2695). Section 3 of DOMA provided that in determining the meaning of any Act of the Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, 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 (1 U.S.C. § 7).

Proposed Requirements

For all Medicare and Medicaid provider and supplier types, we conducted a review of the Code of Federal Regulations (CFR) for instances in which our regulations defer to state law for purposes of defining “representative,” “spouse,” and similar terms in which reference to a spousal relationship is explicit or implied. We have identified several provisions that we believe should be revised in light of the Windsor decision. These provisions have been interpreted to support the denial of federal rights and privileges to a same-sex spouse if their state of residence does not recognize same-sex marriages.

This proposed rule would revise these regulations governing Medicare and Medicaid participating providers and suppliers by proposing to clarify that where state law or facility policy provides or allows certain rights or privileges to a patient’s opposite-sex spouse under certain provisions, a patient’s same-sex spouse must be afforded equal treatment if the marriage is valid in the jurisdiction in which it was celebrated.

These revisions would promote equality and ensure the recognition of the validity of same-sex marriages when administering the patient rights and services at issue.

The proposed rule [CMS-3302-P] can be viewed at: https://www.federalregister.gov/public-inspection/2014/12/11.