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CMS Proposes Recognition of Same-Sex Spouses

On December 12, 2014, CMS issued proposed regulations that would add recognition of same-sex spouses to the Conditions of Participation (CoPs) and Conditions for Coverage (CfCs) relevant to patients in hospitals, ambulatory surgical centers, hospices, laboratories, long-term care facilities and mental health centers.  The resulting changes to the CoPs and CfCs would focus on the role of same-sex spouses as personal representatives of patients (i.e., those individuals who may receive information or be involved in making care decisions).

The proposed rule would require providers to recognize same-sex spouses even if their marriage is not recognized in a provider’s state.  Providers would have to apply the “celebration rule” to confirm that the patient and same-sex spouse were lawfully married under the law of the state, territory or foreign jurisdiction where they entered into the marriage.  Same-sex marriage is legal in 35 states in the United States and in 18 other countries.  If the proposed rule is adopted, providers would need to ensure that a patient’s same-sex marriage was valid in the location in which it occurred (per the celebration rule) before affording that same-sex spouse the rights provided under the CoPs or CfCs.

This proposed rule follows 2011 rulemaking in which the CoPs and CfCs were revised to provide certain rights for domestic partners (including visitation).  Comments on the proposed rule are being accepted through February 10, 2015.

© 2020 McDermott Will & EmeryNational Law Review, Volume IV, Number 350


About this Author

Sandra DiVarco Healthcare Attorney Health Systems Lawyer McDermott Will Emery Law Firm

Sandra DiVarco is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office. Sandy focuses her practice on the representation of hospitals and health systems. She has counseled health care facility and system clients regarding all aspects of health law transactions and health system restructurings. As a registered nurse, Sandy regularly advises clients on the legal aspects of clinical issues and policy/procedure matters. Sandy also has significant experience in assisting clients with...