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Medicare Recognizes Same Sex Marriage and Allows Couples Care in the Same SNF

Medicare recognizes same sex marriage and allows couples to be in the same SNF.(August 29, 2013):  Today, the Department of Health and Human Services (HHS) released its first response to the recent Supreme Court ruling, United States v. Windsor,which held that Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. Section 3 had federally defined marriage as a “union between one man and one woman as husband and wife.” Prior to this ruling, same sex marriage couples were barred from receiving federal marriage benefits, including those benefits provided through Medicare. Now, Medicare recognizes same sex marriage and couples can be cared for in the same skilled nursing facility.  The Press Release clarifies that all beneficiaries in private “Medicare Advantage Plans” (approximately 13 million people) must have access to equal coverage when it comes to care in a skilled nursing facility where their spouse is located. The guidance specifically clarifies that this guarantee of coverage applies equally to couples who are in a legally-recognized same sex marriage, regardless of which state they reside in,  As Secretary Kathleen Sebelius wrote:

“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs,” said HHS Secretary Kathleen Sebelius.  “Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”  

This clarification is important for both Medicare-covered same sex marriage couples and the skilled nursing facility where they are receiving treatment.  As you will recall, Medicare beneficiaries who choose to be covered by a “Medicare Advantage Plan” are eligible to receive care in the same skilled nursing facility as the one where their spouse receives care.  This assumes, of course, that both spouses have met all of the medical necessity and coverage requirements to receive be treated at a skilled nursing facility, and that the specific skilled nursing facility at issue is a participating provider in the beneficiaries’ Medicare Advantage Plan.  As Marilyn Tavenner, Administrator for the Centers for Medicare and Medicaid Services (CMS) wrote:

“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation.”

“Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”

As the government’s Press Release reflects, the Supreme Court’s rejection of DOMA, along with the impact of  United States v. Windsor  and similar rulings, will likely continue to result in further clarifications of one’s eligibility for benefits previously reserved for only traditional, married couples.

Healthcare LawRobert Saltaformaggio is a rising Associate at Liles Parker, Attorneys & Counselors at Law.  Liles Parker is a boutique health law firm with offices in Washington, DC, Houston, DC, McAllen, DC and Baton Rouge, LA.  Our attorneys represent Skilled Nursing Facilities and Long-Term Care Facilities around the country in a full-range of health law statutory and regulatory matters and cases.   For a free consultation on these and other health law issues, give us a call.  We can reached at: 1 (800) 475-1906. 

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