CMS Issues S&C Letter Clarifying Spouse and Related Terms

CMS issued a Survey and Certification letter (S&C 15-13) clarifying a number of terms as a result of the equal protection ruling in the United States v. Windsor case. In the case, the Supreme Court ruled that section 3 of the Defense of Marriage Act (DOMA) is no longer a barrier to the federal government recognizing same-sex marriages when administering federal statutes and programs. CMS is clarifying guidance for provider and supplier types subject to certification the following terms: “spouse,” “marriage,” “family” and “relative” consistently with the Windsor decision.

CMS is clarifying that, except where CMS regulations explicitly require an interpretation in accordance with State law, wherever the text of a regulation or associated guidance uses the above terms or includes a reference to a patient’s or resident’s “representative,” “surrogate,” “support person,” “next-of-kin,” or similar term in such a manner as would normally implicitly or explicitly include a spouse, the terms are to be interpreted consistent with the guidance above. 

In addition, CMS intends to propose a rule which would ensure that certain requirements are consistent with United States v. Windsor. Specifically, the proposed rule would revise certain definitions and patient’s rights provisions that currently defer to State law, in order to ensure that same-sex spouses in legally-valid marriages are recognized and afforded equal rights in Medicare and Medicaid participating facilities.

Contact: Elliott Frost, efrost@leadingageny.org, 518-867-8832.