CMS Proposes Equal Rights Changes to Same-Sex Couples

Wednesday, December 24, 2014

By Lance O. Leider, J.D., The Health Law Firm

Under a new proposed rule hospitals and other health care facilities would have to give equal rights to the spouse of same sex and straight patients as long as the marriages are legal somewhere in the country. The Centers for Medicare and Medicaid Services (CMS) issued the proposed rule broadening the definition of "representative" and "spouse" in its Medicare and Medicaid conditions of participation and conditions of coverage. This rule is in response to United States v. Windsor, in which the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), which banned federal benefits for same-sex spouses, as unconstitutional.

Click here to read the entire proposed rule.

Details of the Proposed Rule.

The proposed rule will apply to all hospitals, ambulatory surgical centers, hospices, long-term care facilities and community mental health centers as a condition for participation in the Medicare and Medicaid programs. According to Bloomberg, these institutions that participate in Medicare and Medicaid must respect same-sex spouses' decision to designate their spouse as a representative as long as the couple is legally married. The rule extends to same-sex couples who reside in or seek treatment in a state that does not legally recognize their marriage. Now all spouses, regardless of sexual orientation, will be able to participate in various aspects of their spouse's health care, including visitation and decision making. Currently there are no exemptions for small or religious-based institutions, according to Bloomberg.

Click here to read the entire article from Bloomberg.

What this Means for Health Care Facilities.

Since the DOMA ruling last year, the Obama Administration has been revising federal regulations to ensure benefits already enjoyed by opposite-sex spouses are also available for those of the same sex.

For all hospitals, ambulatory surgical centers, hospices, long-term care facilities and community mental health centers keep an eye on this proposed rule. CMS is currently accepting comments on the rule for 60 days before making it final. When the final rule is issued, many health care facilities may need to update company policies and procedures for compliance. We would also suggest re-educating staff and employees of this change to avoid patient complaints. If you need assistance in this, it would be beneficial to contact an attorney experienced representing health care facilities.

Contact Health Law Attorneys Experienced in the Representation with Licensed Health Facility Cases.

The Health Law Firm and its attorneys represent licensed health facilities, including assisted living facilities (ALFs), group homes, home health agencies (HHAs), nursing homes, hospices and skilled nursing facilities (SNFs), among others, in a number of different matters including incorporation, preparing contracts, defending the facility against malpractice claims, licensing and regulatory matters, administrative hearings, and routine legal advice.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at


Hummel, Bryna and Nauman, Robert. "CMS Issues Post Windsor Guidance Regarding Same-Sex Spouses." Triage. (December 19, 2014). From:

Wayne, Alex. "Give Gay Spouses Same Rights at All Hospitals, U.S. Says." Bloomberg. (December 11,2 014). From:

About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area.  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

Tag Words: hospital, nursing home, surgery center, hospice, mental health clinic, long-term care facilities, Medicare, Medicaid, same sex couple, same sex spouses, equal rights, Centers for Medicare and Medicaid Services, CMS, health care rights, visitation, decision making, health law, health law firm

The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.

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