CMS Withdraws Proposed Rule on Spousal Rights for Same-Sex Couples

October 4, 2017

The Centers for Medicare and Medicaid Services (CMS) recently withdrew a 2014 proposed rule that would have required long-term care facilities to recognize and ensure rights for same-sex marriages. The agency was careful to note, though, that the withdrawal decision relates to how the rule became void in 2015, not because it is backtracking on protections for LGBTQ individuals.

The original proposal was created after the 2013 Supreme Court ruling in United States v. Windsor, which found parts of the Defense of Marriage Act unconstitutional and allowed the government to recognize same-sex marriages when administering federal programs. Under the rule, requirements of participation in Medicare and Medicaid would have been revised to afford same-sex spouses the same rights as opposite-gender couples.

In 2015, the Supreme Court held that the Due Process and Equal Protection clauses of the Fourteenth Amendment requires a state to license a marriage between two people of the same sex, and to recognize same-sex marriages lawfully performed in other States.

Jason Lundy, a partner with law firm Polsinelli, said in an article that “since the 2015 Supreme Court case made it illegal to discriminate in the context of marriage, it appears that CMS is saying that ‘We don't need to adjust the rules to provide that protection” (October 4, 2017. McKnight’s Long-Term Care News).

But some feel that there are still gray areas in facilities that would benefit from having the CMS rule.
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Mr Lundy said, “It’s conceivable where a facility could say ‘We don't recognize a same-sex spouse as a family member’….I could see where criticism is coming from along those lines, where they think more of an explicit acknowledgement of same-sex marriages on the same footing [as male-female couples] is necessary to avoid those situations.”—Amanda Del Signore