Proposed Rule Would Broaden Rights for Same-Sex Couples at U.S. Hospitals

On December 12, 2014, the Centers for Medicare & Medicaid Services (CMS) announced a proposed rule that would broaden rights for same-sex spouses at US hospitals. The proposed rule is aimed at “ensur[ing] that same-sex spouses in legally-valid marriages are recognized and afforded equal rights in Medicare and Medicaid participating facilities.”

In its 2013 decision United States v. Windsor, The Supreme Court struck down part of the Defense of Marriage Act that governed federal benefits. CMS proposes to make certain regulations consistent with the Windsor decision by revising applicable conditions of participation for providers, conditions for coverage for suppliers, and requirements for long-term care facilities. The proposed rule would revise certain definitions and patient’s rights provisions to ensure that terms including “spouse” and “representative” include same-sex spouses for the purposes of healthcare visitation. In the context of hospice care, the definition of “representative” would be revised to allow a same-sex spouse to authorize or terminate medical care on behalf of a terminally ill patient who is incapacitated.