The Centers for Medicare and Medicaid (“CMS”) issued a proposed rule broadening the definitions of “representative” and “spouse” in its Medicare and Medicaid conditions of participation and conditions of coverage in response to United States v. Windsor, 570 U.S. 12 (2013) — the U.S. Supreme Court  decision striking down Section 3 of the Defense of Marriage Act (DOMA), which banned federal benefits for same-sex spouses, as unconstitutional.
This proposed rule will apply to all hospitals, ambulatory surgical centers, hospices, long-term care facilities, and community mental health centers as a condition for participation in the Medicare and Medicaid programs. Under the proposed rule, institutions that participate in Medicare and Medicaid must respect same-sex spouses’ decisions to designate their spouse as a “representative” or “spouse” as long as the couple is legally married “under the law of the state, territory, or foreign jurisdiction where the marriage was entered into.” CMS followed other administrative agencies that have used the place of celebration as the test for a valid marriage. This “state of celebration rule” extends to same-sex couples who reside in or seek treatment in a state that does not legally recognize their marriage. Now all spouses, regardless of sexual orientation, will be able to participate in various aspects of their spouse’s health care, including visitation and decision-making.
As the proposed rule currently reads, there are no exemptions for small or religious-based institutions. However, this issue may not be as charged as it once was, as one catholic health-care network will be offering health care benefits to same-sex spouses and domestic partners as of January 2015, which leads to the inference catholic institutions may no longer desire to use sexual orientation as a basis to treat individuals differently. Although it is only one at this point, others may soon follow suit. Moreover, it may be difficult to challenge this broad rule, as the Secretary of Health and Human Services’ (the “Secretary”) authority stems from various provisions of the Social Security Act, which authorizes the Secretary to establish requirements necessary in the interest of the health and safety of patients and agencies are given high deference in the rule-making process.
This proposed rule is open for comment for 60 days.