Same-sex marriage recognition would be required under rule

Long-term care (LTC) facilities that do not recognize residents’ same-sex marriages would be ineligible to receive Medicare or Medicaid funding under a rule proposed by the Centers for Medicare & Medicaid Services (CMS) that was published in the Dec. 12 Federal Register. The rule would require facilities to recognize any same-sex marriage conducted according to the law where it was entered into, regardless of whether such marriages are legal in the state in which a facility is located.

CMS will accept comments on the rule through Feb. 10. The Federal Register has instructions on how to comment.

CMS says it is recommending the changes to some its provisions in light of United States v. Windsor, in which the Supreme Court found part of the Defense of Marriage Act unconstitutional because it violated the Fifth Amendment. CMS notes that the outcome of the court case affects all types of providers and suppliers.

“[The U.S. Department of Health and Human Services] has adopted a policy of treating same-sex marriages on the same terms as opporsite-sex marriages to the greatest extent possible,” CMS says in background information in the rule.

LTC facilities would be required to treat a same-sex spouse of a patient/resident in a manner equal to an opposite-sex spouse. Provisions in the rule also would apply to hospices, hospitals, ambulatory surgical settings and community mental health centers. In the case of hospices, same-sex spouses would be guaranteed the ability to make decisions to terminate care for their loved ones.