The Centers for Medicare & Medicaid Services (CMS) recently released a memorandum to Medicare Advantage (MA) organizations concerning same-sex couple benefits.1 In the memorandum, which was issued August 29, 2013, CMS states that MA organizations must immediately cover services provided in a skilled nursing facility (SNF) in which a validly married same sex spouse resides to the same extent that they would be required to cover the services if an opposite sex spouse resided in the SNF.
CMS published the memorandum in light of the Supreme Court’s recent ruling in United States v. Windsor.2 In the case, the Court struck down a section of the Defense of Marriage Act (DOMA), which excluded homosexual couples from the definitions of “marriage” and “spouse” in regulations of administrative agencies (e.g., CMS).3 This August CMS memorandum is the first guidance issued by the Department of Health and Human Services (HHS) following the Windsor decision.4
To be consistent with the Windsor decision, the memorandum notes that CMS interprets “spouse” to include “individuals of the same sex who are legally married under the law of a state, territory, or foreign jurisdiction.” By way of background, when an MA organization’s Medicare enrollee is discharged from a hospital or if the MA organization chooses to provide SNF care without a qualifying hospital stay, the MA plan must cover the enrollee’s “extended care services” in certain SNFs if other requirements for SNF coverage are met.5 If an enrollee’s spouse resides in a SNF when the enrollee is discharged from a hospital or immediately before the enrollee is admitted for “extended care services,” the MA plan must also cover the enrollee’s care in the SNF.6 Prior to CMS issuing this memorandum, only an enrollee in a heterosexual marriage was entitled to this benefit.7 However, as a result of the CMS memorandum, MA plans now must provide coverage to an enrollee in a same-sex marriage.8
The memorandum further confirms that this type of coverage is guaranteed to same-sex couples in lawful marriages, even if they move to a state or territory that does not recognize their marriage.9 Specifically, CMS provides that the term “spouse” includes individuals of the same sex who: 1) are domiciled in a state or territory that recognizes their marriage, or 2) were legally married in a jurisdiction that recognizes their marriage, regardless of their domicile.
Not only should MA organizations update their protocol accordingly, but they should also plan to follow closely future CMS guidance and memoranda. HHS Secretary Kathleen Sebelius stated that CMS’s August memorandum “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.”10