CMS gets stronger on same-sex couples

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Long-term care providers that don't recognize same-sex marriages would be endangering their ability to take part in the Medicare and Medicaid programs, the federal agency overseeing the programs says in a proposed in a new rule.

The Centers for Medicare & Medicaid Services also issued a memorandum to surveyors recently clarifying that terms such as “support person” and “next-of-kin” mentioned on Medicare and Medicaid rules can include same-sex spouses in most instances. The Dec. 11 guidance became effective immediately.

“Our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the healthcare provider or supplier is located,” CMS said in the rule, which also was proposed Dec. 11.

The regulation would apply to hospices and other types of providers and suppliers as well. The 26-page document was drafted in response to the 2013 United States v. Windsor Supreme Court ruling, which paved the way for gay married couples to be recognized under federal law.

Among the conditions of participation related to long-term care is a section on resident rights, including rights to communicate with and have access to people “inside and outside a facility.” A proposed addition to this section would specify that a same-sex spouse has the same rights as opposite-gender spouses, if the same-sex marriage was valid in the jurisdiction it took place.

A proposed revision for hospices would ensure that a same-sex spouse can make the decision to terminate care for an incapacitated person.

Furthermore, terms that “would normally implicitly or explicitly include a spouse” should also be interpreted to include a same-sex spouse. Potential exceptions would occur when CMS regulations explicitly defer to state law.