Medicare, Medicaid move to broaden rights for same-sex spouses

Medicare and Medicaid are proposing to broaden decision-making rights for same-sex couples in light of a 2013 Supreme Court ruling that struck down a ban on federal benefits for gay and lesbian spouses. 

The Centers for Medicare and Medicaid Services (CMS) released a 26-page proposed rule Thursday requiring that providers and suppliers in the programs recognize same-sex spouses as a condition for participation. 

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If finalized, the regulation would apply to hospitals, long-term care facilities, ambulatory surgical centers, hospice providers and community mental health centers. 

"Our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the healthcare provider or supplier is located," the regulation stated. 

Currently, some documents outlining conditions of participation for Medicare and Medicaid providers rely on state-based terminology that might not guarantee equal treatment for same-sex couples. 

The proposal released Thursday would revise that language to ensure that terms like "spouse" and "representative" include gay and lesbian spouses for the purposes of healthcare visitation and decision-making. 

In the case of hospice care, for example, the current definition of "representative" allows the person to authorize or terminate medical care on behalf of a terminally ill patient who is incapacitated. 

"We propose to revise the definition of 'representative' to provide that a same-sex spouse in a marriage that was valid in the jurisdiction in which it was celebrated must be treated as a 'spouse,' " the regulation stated. 

CMS announced in April that it would begin processing Medicare enrollment requests from same-sex spouses. The decision allowed the Social Security Administration to recognize gay and lesbian marriages in determining eligibility for the program.

Agencies are making the changes in response to United States v. Windsor, which struck down part of the Defense of Marriage Act that governed federal benefits.