Long-Term Care Facilities Must Recognize Same-Sex Spousal Rights

Long-term care facilities participating in Medicare and Medicaid may soon be required to recognize the rights of same-sex spouses regardless if their state has validated the marriage, according to a recently proposed rule by the Centers for Medicare & Medicaid Services (CMS).

“These revisions would promote equality and ensure the recognition of the validity of same-sex marriages when administering the patient rights and services at issue,” CMS stated in a written announcement.

The proposal revises certain conditions of coverage and participation for Medicare and Medicaid providers, suppliers and long-term care facilities consistent with the Supreme Court decision in the case United States v. Windsor, which struck down a section of the Defense of Marriage Act (DOMA). 

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In the case, the Supreme Court held that section 3 of DOMA is unconstitutional because it violates the Fifth Amendment. The section provided that the word “marriage” meant only a legal union between one man and one woman as husband and wife, and the word “spouse” could refer only to a person of the opposite sex who was a husband or wife. 

For all Medicare and Medicaid provider and supplier types, CMS conducted a review of the Code of Federal Regulations for instances in which its rules defer to state law for purposes of defining “representative,” “spouse,” and similar terms in which reference to a spousal relationship is explicitly or implied. 

“We have identified several provisions that we believe should be revised in light of the Windsor decision,” CMS stated in a written announcement. “These provisions have been interpreted to support the denial of federal rights and privileges to a same-sex spouse if their state of residence does not recognize same-sex marriages.”

Written by Jason Oliva

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