CMS Releases Proposed Rule that will Affect Hospices
December 15, 2014 01:00 PM
The Centers for Medicare & Medicaid Services (CMS) issued a proposed rule [CMS-3302-P] to revise selected Conditions of Participation (CoPs) for providers, Conditions for Coverage (CfCs) for suppliers, and requirements for long-term care facilities, to ensure that certain requirements are consistent with the Supreme Court decision in United States v. Windsor, 570 U.S. 12, 133 S.Ct. 2675 (2013), and U.S. Health and Human Services policy. This Supreme Court decision is related to the Defense of Marriage Act.
This proposed rule addresses certain regulations governing Medicare and Medicaid participating providers and suppliers where current regulations look to state law in a matter that implicates - or may implicate - a marital relationship. CMS’ goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the health care provider or supplier is located, and where the Medicare program explicitly or impliedly provides for specific treatment of spouses.
Consistent with the U.S. Supreme Court's holding in United States v. Windsor and HHS policy, for purposes of the CoPs and CfCs at issue, CMS is proposing to recognize marriages between individuals of the same sex who were lawfully married under the law of the state, territory, or foreign jurisdiction where the marriage was entered into (“celebration rule”), assuming that at least one state recognizes the marriage, regardless of where the couple resides or the jurisdiction in which the provider or supplier providing health care services to the individual is located, regardless of any state law to the contrary. 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 proposed changes applicable to hospices are below.
B. Hospice Care
1. Definitions (§ 418.3)
Section 418.3 sets forth the definition of “representative” when used throughout Part 418 as related to hospice care. Currently, the definition provides that a representative is an individual who has the authority under state law (whether by statute or pursuant to an appointment by the courts of the state) to authorize or terminate medical care or to elect or revoke the election of hospice care on behalf of a terminally ill patient who is mentally or physically incapacitated; in addition, the term may include a guardian under the regulatory definition. We propose to revise the definition of “representative” to provide that a same-sex spouse in a marriage that was valid in the jurisdiction in which it was celebrated must be treated as a “spouse” wherever state law authorizes a “spouse” to be a representative, but a court has not appointed a specific representative. We intend for the hospice to use a celebration rule in recognizing the same-sex spouse of a patient, regardless of whether the law in the jurisdiction where the patient or spouse resides or where the hospice is located recognizes the same-sex spouse.
2. Condition of Participation: Patient's Rights (§ 418.52(b)(3))
Section 418.52 sets forth the requirements for a hospice to inform a patient of his or her rights. Current regulations at § 418.52(b)(3) require a hospice to allow a patient's legal representative to exercise the patient's rights to the extent allowed by state law, if the patient has not been adjudged incompetent by a state court. Regulations at § 418.52(b)(3) refer to a representative “designated by the patient in accordance with state law.” We propose to add at paragraph (b)(3), language that establishes 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 was valid in the jurisdiction in which it was celebrated.
CMS is accepting comments on the proposal until February 10, 2015. The proposed rule can be accessed here. Please note that the link will change after publication in the Federal Register.
The corresponding Fact Sheet can be accessed here.
NAHC will compile comments and you can share your comments for inclusion by emailing them to Katie@nahc.org or TMF@nahc.org.