Proposal would enable medical decision making by same-sex spouses



Under a new federal proposal, physicians could more easily provide sensitive medical information about patients to same-sex spouses and follow the treatment wishes of same-sex partners when a patient is incapacitated.

The proposal from the Centers for Medicare & Medicaid Services is aimed at making program requirements more consistent with the U.S. Supreme Court’s decision in United States v. Windsor and would apply to mental health, hospital, laboratory, hospice, long-term care, and ambulatory surgical center services.

Dr. Harvey Makadon

Dr. Harvey Makadon

The proposed rules allow for smoother communication among physicians, patients, and same-sex spouses and reduce frustration for all parties when it comes to medical decision making, said Dr. Harvey J. Makadon, director of the National LGBT Health Education Center at the Fenway Institute, Boston, and a professor of medicine at Harvard Medical School.

“The proposed rules essentially recognize the reality that same-sex individuals can now get married and that their spouses need to be treated in the same way that all spouses are treated in terms of being involved in health care decision making,” Dr. Makadon said in an interview. “Rules like this make life easier for clinicians, who are in a better position not only to respect [same-sex relationships], but to feel like the CMS supports their ability to involve the appropriate loved ones in a patient’s care.”

In Windsor, the Supreme Court in 2013 held that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional because it violated the Fifth Amendment. DOMA had stated that, within government programs, the word “marriage” meant only a legal union between one man and one woman and the word “spouse” could refer only to a husband or wife of the opposite sex. Since the decision, the government has started approving some Medicare enrollments for same-sex spouses, including care under Medicare Part A and skilled nursing services under Medicare Advantage.

The CMS proposal, announced Dec. 11, would revise language within the Medicare and Medicare programs to recognize marriages between individuals of the same sex who were lawfully married under state law, regardless of where the couple now resides or the jurisdiction in which a health provider is located. The regulations would mandate that same-sex partners be afforded treatment equal to that afforded to opposite-sex spouses if the marriage is valid in the jurisdiction in which it was celebrated.

Hector Vargas

Hector Vargas

Specifically, CMS wants program language to reflect that hospitals, ambulatory surgical centers, and community mental health centers must inform recognized same-sex spouses of a patient’s rights in advance of care decisions when necessary. Current language requires health providers in such care environments to inform patients or, when appropriate, legal representatives, of a patient’s rights in advance of furnishing or discontinuing care. Additionally, the agency suggests adding same-sex spouses to the definition of “representative” for purposes of authorizing or terminating medical care or revoking hospice care on behalf of a terminally ill patient.

Same-sex spouses also would more easily access laboratory test results in certain circumstances. Current CMS language requires that legal representatives be notified about blood screenings and infectious disease results if patients are deemed incompetent. In such instances, recognized same-sex spouses now would be included in the definition of legal representative, according to the proposal.

The proposed rules are a significant step in the federal government’s efforts to ensure that programs treat married same-sex couples equal to their opposite-sex counterparts, as mandated by Windsor, said Hector Vargas, executive director of GLMA: Health Professionals Advancing LGBT Equality (formally known as the Gay and Lesbian Medical Association).

“While facilities and providers should already treat all married couples equally, the regulation removes any doubt about this for Medicare- and Medicaid-participating facilities and providers,” Mr. Vargas said in an interview.

The proposed rules were published Dec. 12 in the Federal Register. Comments on the latest proposal can be submitted to until Feb. 10, 2015.

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