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Revised CMS CoP Manual Addresses Spousal Rights for Same-sex Couples

October 13th, 2016

CMS recently revised its 510-page hospital condition of participation (CoP) manual, also referred to as the State Operations Manual. Any hospital that accepts Medicare payments must be in compliance with the CoP manual.

This is the third time this year it has been updated. The last update, which occurred in July, included the 41 pages of completely rewritten standards for radiology and nuclear medicine.

CMS issued a 10-page survey memo on Dec. 12, 2014. That same day, a 6-page document in the Federal Register was published. It recognized the rights of spouses in legally valid same-sex marriages. The hospital had to honor the same-sex partner as a spouse if they were legally married in any state. This was true even if that state did not recognize same-sex marriages. This provided equal rights to the spouse in same-sex marriages, regardless of where the couple resided. In June, the Supreme Court ruled same-sex marriages legal.

Page 37 of the new manual says that whenever the word “spouse” is used in the hospital CoPs, it means an individual who is married to another as a result of a lawful marriage. This includes same sex-marriages and is true regardless of where the marriage occurred.

CMS provides guidance about when to treat an individual as the patient’s representative. CMS says that if the state law specifies a procedure for determining who may be considered to be the incapacitated patient’s representative, then the hospital follows the state law. Otherwise, CMS sets out information on how to proceed. Representatives could include parents who make decisions for their minor children, guardians appointed by the probate court, patient advocates or support persons, and durable powers of attorney. CMS says that the hospital, when discussing the spouse, must also recognize legally married same-sex partners as spouses. Also, CMS says the hospital is required to recognize same-sex partners who are legally married, regardless of any state laws.

The current CMS hospital manual is available here. Click on Appendix A.

Related [On-Demand Webinar]: Advance Directives Update: What Every Healthcare Provider Should Know