On December 12, 2014, CMS issued proposed regulations that would add recognition of same-sex spouses to the Conditions of Participation (CoPs) and Conditions for Coverage (CfCs) relevant to patients in hospitals, ambulatory surgical centers, hospices, laboratories, long-term care facilities and mental health centers.  The resulting changes to the CoPs and CfCs would focus on the role of same-sex spouses as personal representatives of patients (i.e., those individuals who may receive information or be involved in making care decisions).

The proposed rule would require providers to recognize same-sex spouses even if their marriage is not recognized in a provider’s state.  Providers would have to apply the “celebration rule” to confirm that the patient and same-sex spouse were lawfully married under the law of the state, territory or foreign jurisdiction where they entered into the marriage.  Same-sex marriage is legal in 35 states in the United States and in 18 other countries.  If the proposed rule is adopted, providers would need to ensure that a patient’s same-sex marriage was valid in the location in which it occurred (per the celebration rule) before affording that same-sex spouse the rights provided under the CoPs or CfCs.

This proposed rule follows 2011 rulemaking in which the CoPs and CfCs were revised to provide certain rights for domestic partners (including visitation).  Comments on the proposed rule are being accepted through February 10, 2015.