Healthcare News & Insights

Updated rules for hospitals and same-sex marriage

There’s new guidance from the feds concerning spouses’ rights for hospital patients in same-sex marriages.

487223027The Centers for Medicare & Medicaid Services (CMS) recently issued a proposed rule that would officially give same-sex partners the same rights as other married couples when it comes to making decisions about patient care.

As long as the couple was married in a state that recognizes their marriage, each partner would have the same legal protections that any married couple would have if one of them were hospitalized.

Legal reasons

This proposed rule comes on the heels of the Supreme Court’s 2013 decision in United States v. Windsor, which legally gave states the right to allow same-sex marriages at their discretion.

The High Court decided that the piece of legislation banning same-sex marriage, the Defense of Marriage Act, was unconstitutional, violating the Fifth Amendment.

In part because of the Supreme Court ruling, many states have started recognizing same-sex marriages. Right now, 35 states and the District of Columbia allow same-sex marriage, according to data from CNN.

While the remaining 15 states currently prohibit same-sex marriage, in seven of those states, court challenges to those bans are in the appeals process.

New requirements

The new federal guidance for same-sex marriages applies to hospitals, hospice providers, ambulatory surgical centers and other covered healthcare entities that participate in Medicare or Medicaid.

Specifically, the proposed rule would add language to existing conditions of participation for hospitals discussing patients’ rights and laboratory services. The regulations let patients know that, if needed, a legal representative or a relative (such as a spouse) can make treatment decisions on their behalf.

The new rules for these conditions of participation will specifically state that “the same-sex spouse of a patient must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage is valid in the jurisdiction in which it was celebrated.”

According to CMS, this requirement will apply in cases where state law identifies or designates a patient’s spouse as a legal representative.

The new CMS rule was just published on the Federal Register, and CMS is accepting comments from hospitals and other affected entities until February 10.

Privacy updates

HIPAA laws are also changing in light of the Supreme Court’s decision.

Per the Department of Health and Human Services, a patient can list a same-sex spouse as someone who can access the patient’s protected health information (PHI). The partner falls under the category of “family member,” as written in the privacy rule. A same-sex spouse can also discuss the patient’s condition and treatment with clinicians.

Staff must still get permission from the patient before PHI can be shared, even with spouses. Although it doesn’t have to be written permission in all cases, it’s a good idea to have a written document on file in case any issues arise.

It’s important that your hospital staff is aware of these rules as they relate to same-sex marriages so there’s no confusion.

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