May 27, 2020

May 26, 2020

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CMS Issues Proposed Rule Regarding Conditions of Participation that Impacts Same-Sex Spouses

On December 11, 2014, the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule that would revise certain conditions of participation for providers, conditions of coverage for suppliers, and requirements for long-term care facilities. The proposed rule would make the conditions and requirements consistent with the U.S. Supreme Court’s decision in United States v. Windsor and U.S. Health and Human Services policy.

In Windsor, the Supreme Court held a federal law unconstitutional because the law defined “marriage” as a legal union between one man and one woman and defined “spouse” to mean a husband or wife of the opposite sex. Accordingly, CMS reviewed its regulations to identify inconsistencies between the regulations and the decision in Windsor.

The proposed rule would revise certain definitions and patient’s rights provisions in order to ensure that same-sex spouses in legally-valid marriages are recognized and afforded equal rights to opposite-sex spouses in Medicare and Medicaid participating facilities. Specifically, the proposed rule would affect ambulatory surgical centers, hospices, hospitals, long-term care facilities, and community mental health centers.

For example, the proposed rule would:

  • Require hospitals, when appropriate, to inform a patient’s representative (as allowed under state law), which may be a same-sex spouse, of a patient’s rights in advance of furnishing or discontinuing care; and

  • Require ambulatory surgical centers to consider a patient’s same-sex spouse when determining a patient’s legal representative or surrogate in situations where a state court has not determined a patient to be incompetent.

Comments on the proposed rule are due 60 days after the proposed rule is published in the Federal Register. Publication is scheduled for December 12, 2014.

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von Briesen & Roper’s Health Law Section provides comprehensive legal services to the health care industry nationwide as both general counsel and special project counsel. Our clients include integrated delivery systems, academic medical centers, community hospitals, Catholic-sponsored hospitals, rural and critical access hospitals, imaging centers, physicians and multi-specialty clinics, specialty hospitals, ancillary suppliers, home health agencies, nursing homes, hospices, assisted living facilities, mental health and AODA facilities, DME suppliers, laboratories,...