Proposed Amendment to Conditions of Participation Recognizes Same-Sex Marriages

Hospital laboratory Medicare Conditions of Participation will be amended to protect the rights of patients in same-sex marriages. A proposed rule was released responding to the US Supreme Court decision that held unconstitutional the Defense of Marriage Act (DOMA). The amendments are intended "to ensure that same-sex spouses in legally-valid marriages are recognized and afforded equal rights in Medicare and Medicaid participating facilities," the notice for the proposed rule explains. The U.S. Supreme Court declared DOMA unconstitutional in a 2013 decision in United States v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013). The Court said DOMA violated the Fifth Amendment by stating that the word marriage should be defined to mean only the legal union between "one man and one woman as husband and wife" and that spouse means a person of the opposite gender. The Court explained that the federal law couldn't prohibit recognition of same sex marriages that are recognized by and legally entered into under state law. Thus, the proposed rule will amend Conditions of Participation to comply with the Court's ruling. "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," the rule states. Under the Conditions of Participation for Hospitals, the proposal amends provisions that require a hospital inform patients and their representatives of patients' rights and give the patient the right to make informed decisions. Those provisions will state that same-sex spouses must be treated the same as opposite-sex spouses if there is a valid marriage. Provisions specifically related to hospital laboratory services would also be amended. To comply with Conditions of Participation, 42 C.F.R. 482.27 requires a hospital to have laboratory services and to screen blood and blood products for infectious disease and to notify donors and patients of findings when necessary. In particular, when notice must be given to patients determined incompetent, that notice can be given to the patient's legal representative. If a patient is competent, state law may allow a legal representative or relative to receive health information. In both cases, the amended rule will require that for notification of relatives and legal representatives (when state law defines a representative to include a spouse), same-sex spouses must receive the same treatment as opposite-sex spouses. Similar amendments are being made to Conditions of Participation for Ambulatory Surgical Centers, Hospice, Community Mental Health Centers and Long Term Care Facilities. Takeaway: Conditions of Participation requirements will ensure patients' rights policies treat same-sex couples in a legally recognized marriage the same as opposite-gender married couples.