CMS withdraws proposal requiring LTC facilities to afford spousal rights to same-sex couples

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The rule was proposed in 2014 to address the rights of same-sex spouses in long-term care.
The rule was proposed in 2014 to address the rights of same-sex spouses in long-term care.

The Centers for Medicare & Medicaid Services has withdrawn a 2014 proposed rule that would have required long-term care facilities to recognize and ensure rights for same-sex marriages, according to a notice published Tuesday.

But the agency was quick to point out the decision relates to how the rule became moot in 2015, not because it is cutting back on protections for LGBT individuals. A CMS spokesperson told McKnight's Long-Term Care News the agency is pulling the rule because the Supreme Court's 2015 ruling in Obergefell v. Hodges required all states to license and recognize same-sex marriage.

“The 2015 decision addressed the concerns that CMS had sought to address with the proposed rule,” the spokesperson said.

The original proposal was created after the 2013 Supreme Court ruling in United States v. Windsor, which found parts of the Defense of Marriage Act unconstitutional and allowed the government to recognize same-sex marriages when administering federal programs. Under the rule, requirements of participation in Medicare and Medicaid would have been revised to afford same-sex spouses the same rights as opposite-gender couples.

Jason Lundy, a partner with law firm Polsinelli, told McKnight's that “since the 2015 Supreme Court case made it illegal to discriminate in the context of marriage, it appears that CMS is saying that ‘We don't need to adjust the rules to provide that protection.'”

However, despite the Obergefell ruling, CMS' decision to pull the rule may still leave some long-term care residents in same-sex marriages vulnerable to discrimination, former CMS Administrator Andy Slavitt said on Twitter Tuesday afternoon.

“[Obergefell] just says people can get married,” Slavitt wrote in response to a question about the withdrawal. “Entities could still adopt policies that treat same-sex spouses differently from opposite sex.”

Lundy agreed that there may be operations-related policies in long-term care facilities that could be “gray areas” in terms of rights for same-sex spouses.

“It's conceivable where a facility could say ‘We don't recognize a same-sex spouse as a family member,'” Lundy said. “I could see where criticism is coming from along those lines, where they think more of an explicit acknowledgement of same-sex marriages on the same footing [as male-female couples] is necessary to avoid those situations.”

The notice is slated for official publication in the Federal Register on Wednesday. CMS also announced the withdrawal of two other proposed rules involving Medicare Part B drug payments and compliance for controlling health plans.