On December 12, 2014, The Centers for Medicare and Medicaid Services (CMS) proposed a regulatory change to ensure that legally married same-sex spouses receive the same rights as opposite-sex spouses in Medicare and Medicaid participating facilities. These rules apply regardless of whether the state where the facility is located recognizes same-sex marriages. CMS is a federal agency within the United States Department of Health and Human Services. It is responsible for administering the Medicare program and, in partnership with state governments, the Medicaid program.
The new rule would apply to long-term care facilities, hospices, hospitals, ambulatory surgical centers and other health care providers. If the new rules become final, health care facilities and providers would have to recognize all valid same-sex marriages, regardless of whether the state in which the health care facility or provider is located recognizes same-sex marriages.
The new rule was drafted in response to the U.S. Supreme Court’s ruling in United States v. Windsor, 570 U.S.12, 133 S.Ct. 2675 (2013). That decision declared the federal Defense of Marriage Act (DOMA) unconstitutional. DOMA defined “marriage” and “spouse” to exclude same-sex partners, stating:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
In the Windsor case, New York residents Edith Windsor and Thea Spyer, wed in Ontario, Canada, in 2007. The State of New York recognizes that marriage. When Spyer died in 2009, she left her entire estate to Windsor. Windsor then sought to claim the federal estate tax exemption for surviving spouses, but was barred from doing so by DOMA. The U.S. Supreme Court held that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.
The proposed rule was published in the December 12, 2014, Federal Register, and can be viewed here: https://www.federalregister.gov/articles/2014/12/12/2014-28268/medicare-and-medicaid-program-revisions-to-certain-patients-rights-conditions-of-participation-and.
