The rule being published tomorrow not only grants same-sex spouses the right to act as medical decision-makers, but it also requires Medicare and Medicaid providers to inform patients of these rights.
Tomorrow, CMS will publish a rule triggered by the historic US Supreme Court ruling June 26, 2013, that found unconstitutional the portion of the Defense of Marriage Act (DOMA) that restricted the definitions of “marriage” and “spouse” to heterosexual unions.
The rule, the result of the 5-4 ruling in United States v. Windsor, will enforce the idea that same-sex spouses have the right to act as medical decision makers. Revisions apply to selected conditions of participation for providers, conditions of coverage for suppliers, and requirements for long-term care facilities, according to a statement today from CMS.
All will be required to ensure they are providing services in a manner consistent with the Supreme Court ruling to keep receiving federal dollars.
CMS’ new regulations reverse the position that the federal government found itself in just a few years ago, as individual states began to legalize civil unions and later, same-sex marriage. While these state laws sought to afford same-sex couples protections in financial matters, property taxes, and medical decision-making, there was no ability to change barriers to equal rights that were ingrained in federal law.
DOMA, passed in 1996, defined marriage as being strictly between a man and a woman, thus denying same-sex couples a myriad of benefits. These included rates afforded to spouses in estate taxes—which is what brought plaintiff Edith Windsor to court—to pretax savings rates for married couples in certain insurance plans.
The rules being published tomorrow, however, deal with one of the most sensitive matters raised in legal challenges to DOMA: the right of a same-sex spouse to be the medical decision maker when the other partner is either temporarily or permanently unable to make decisions. The rule being published states, in part:
“We propose to add…the requirement that the same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage is valid in the jurisdiction in which it was celebrated. This requirement would apply when state law designates or identifies a ‘spouse’ as a legal representative in case of either competency or incompetency.”
The rules being published have sections for patients in hospital settings and for residents in home healthcare settings, and require not only that patients be granted rights, but also that the facilities inform the patients and their same-sex spouse of these rights.
With the end of DOMA-era restrictions, CMS is now ahead of states that still deny same-sex marriage, and marriage between same-sex partners offers more security than it once did.
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