CMS clarifies long-term care surveyor guidance on same-sex marriages

When they appear in Medicare and Medicaid regulations, terms such as “support person” and “next-of-kin” can include same-sex spouses in most instances, according to a recently issued memorandum to long-term care surveyors.

The Centers for Medicare & Medicaid Services issued the Dec. 12 memo on the same day it published a proposed rule on the rights of same-sex couples. Under that rule, long-term care facilities in all states would have to recognize same-sex spouses and extend them all relevant rights and privileges, if the marriage was legal in the jurisdiction where it occurred.

The memo clarifies how surveyors should interpret terms such as “marriage” and “spouse” in the context of current regulations and guidance. For example, “marriage” refers to couples who were legally wed in the place where the marriage occurred; this applies to same-sex couples, even if same-sex marriage is not legal where the healthcare provider is located. 

Furthermore, terms that “would normally implicitly or explicitly include a spouse” should also be interpreted to include a same-sex spouse. These terms include “representative,” “surrogate,” “support person” and “next-of-kin.” Potential exceptions would occur when CMS regulations explicitly defer to state law.

The guidance is effective immediately, the memo states. It includes an advance copy of relevant revisions to Appendix PP of the State Operations manual.