CMS withdraws proposal to aid same-sex spouses in LTC

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CMS said the 2014 rule became moot the following year.
CMS said the 2014 rule became moot the following year.

The Centers for Medicare & Medicaid Services withdrew a proposed rule in October originally aimed at ensuring rights for married same-sex couples in long-term care facilities.

The rule, introduced in 2014, 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. If passed, the rule would have revised requirements of participation for Medicare and Medicaid facilities to afford same-sex spouses the same rights as opposite-gender couples.

CMS' decision to withdraw the proposal isn't tied to any effort to roll back protections for LGBTQ individuals, the agency noted, but rather to the fact that the rule become moot in 2015 with the Supreme Court's ruling in Obergefell v. Hodges. That decision 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,” a spokesman for the agency told McKnight's

Still, some were still skeptical of the withdrawal's effect on LGBT residents and their spouses. 

Former CMS Administrator Andy Slavitt took to Twitter to express concerns that couples could still be discriminated against since “[Obergefell] just says people can get married.”

“Entities could still adopt policies that treat same-sex spouses differently from opposite-sex,” Slavitt wrote.

Jason T. Lundy, a partner with law firm Polsinelli in Chicago, told
McKnight's that criticism of the withdrawal is valid, since “it's conceivable where a facility could say, ‘We don't recognize a same-sex spouse as a family member.'”