CMS Withdraws Proposed 2014 Same Sex Rule

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On Tuesday, McKnight’s Long Term Care News, reported that the Trump Administration’s Centers for Medicaid and Medicaid Services (CMS) withdrew a 2014 rule proposed requiring long-term care facilities to recognize and ensure rights for same-sex marriage.  CMS officials contend that this rule was invalidated by the Supreme Court’s 2015 Obergefell vs. Hodges ruling that made Supreme Court ruling legalizing same-sex marriage.

However, several legal experts familiar with CMS rules feel that while the Supreme Court made it illegal to discriminate against married persons, pulling the rule may leave some marriages vulnerable.  McKnight reported that former CMS Administrator Andy Slavitt Tweeted on Tuesday.

“[Obergefell] just says people can get married,” Slavitt Tweeted in response to a question. “Entities could still adopt policies that treat same-sex spouses differently from opposite sex.”

Jason Lundy, law partner with Polsinelli, told McKnight’s that there could be operational policies not covered and that ‘”gray areas” may exist for same-sex spouses.  Lundy told McKnights that “It’s conceivable where a facility could say ‘We don’t recognize a same-sex spouse as a family member,’” Lundy said. “I could see where criticism is coming from along those lines, where they think more of an explicit acknowledgement of same-sex marriages on the same footing [as male-female couples] is necessary to avoid those situations.”