CMS Issues Guidance on Same-Sex Partners as Patient Representatives

Hospitals that receive Medicare or Medicaid funding must generally allow a same-sex domestic partner to be a medical representative for an incapacitated patient, according to guidance issued this month by the Centers for Medicare and Medicaid Services (CMS) within the U.S. Department of Health and Human Services (HHS). CMS has told hospitals receiving federal funding they must accept as a patient's medical representative any person the patient names or has named in an advance directive. If a patient is incapacitated and has no advance directive, the hospital is expected to accept as the patient's medical representative anyone claiming to be a spouse, family member, or domestic partner — including a same-sex domestic partner and even if the domestic partnership is not recognized under state marital or domestic union law. The only permitted exceptions to this general expectation would arise if more than one person claims to be the patient's representative, state law requires specific documentation for the designation of a medical representative, or the hospital has a reasonable basis to believe an individual is making a false claim about a relationship with a patient. The recent guidance adds to a November, 2010, CMS rule requiring hospitals that receive funds from Medicare or Medicaid to treat all visitors equally, without regard to sexual orientation. Both the CMS rule and guidance embody the principles found in a memorandum issued by President Obama in April, 2010, calling for steps to end discrimination against same-sex partners in hospital visitation and in the designation of medical representatives. The CMS has also sent a memorandum reinforcing its new non-discrimination policies to the directors of State Survey Agencies which are responsible for enforcing the Conditions of Participation (CoPs) rules that hospitals must meet to receive Medicare and Medicaid funding.

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