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[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Proposed Rules]
[Pages 73873-73878]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28268]

[[Page 73873]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Part 416, 418, 482, 483, and 485

[CMS-3302-P]
RIN 0938-AS29

Medicare and Medicaid Program; Revisions to Certain Patient's 
Rights Conditions of Participation and Conditions for Coverage

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would revise the applicable conditions of 
participation (CoPs) for providers, conditions for coverage (CfCs) for 
suppliers, and requirements for long-term care facilities, to ensure 
that certain requirements are consistent with the Supreme Court 
decision in United States v. Windsor, 570 U.S.12, 133 S.Ct. 2675 
(2013), and HHS policy. Specifically, we propose to revise certain 
definitions and patient's rights provisions, in order to ensure that 
same-sex spouses in legally-valid marriages are recognized and afforded 
equal rights in Medicare and Medicaid participating facilities.

DATES: To be assured consideration, comments must be received at one of 
the addresses provided below, no later than 5 p.m. on February 10, 
2015.

ADDRESSES: In commenting, please refer to file code CMS-3302-P. Because 
of staff and resource limitations, we cannot accept comments by 
facsimile (FAX) transmission.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address only: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-3302-P, P.O. Box 8013, 
Baltimore, MD 21244-8013.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address only: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-3302-P, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments only to the following addresses prior to 
the close of the comment period:

a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 
20201.

    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without Federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available for persons wishing to retain a proof of filing 
by stamping in and retaining an extra copy of the comments being 
filed.)

b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.

    If you intend to deliver your comments to the Baltimore address, 
call telephone number (410) 786-9994 in advance to schedule your 
arrival with one of our staff members.
    Comments erroneously mailed to the addresses indicated as 
appropriate for hand or courier delivery may be delayed and received 
after the comment period.
    For information on viewing public comments, see the beginning of 
the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Ronisha Davis, (410) 786-6882.

SUPPLEMENTARY INFORMATION: 
    Inspection of Public Comments: All comments received before the 
close of the comment period are available for viewing by the public, 
including any personally identifiable or confidential business 
information that is included in a comment. We post all comments 
received before the close of the comment period on the following Web 
site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that Web site to 
view public comments.
    Comments received timely will also be available for public 
inspection as they are received, generally beginning approximately 3 
weeks after publication of a document, at the headquarters of the 
Centers for Medicare & Medicaid Services, 7500 Security Boulevard, 
Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 
a.m. to 4 p.m. To schedule an appointment to view public comments, 
phone 1-800-743-3951.

Table of Contents

    This proposed rule is organized as follows:

I. Background
    A. United States v. Windsor Decision
    B. Statutory and Regulatory Authority
II. Provisions of the Proposed Regulation
    A. Ambulatory Surgical Centers Condition for Coverage--Patient 
Rights (Sec.  416.50)
    B. Hospice Care (Part 418)
    C. Conditions of Participation for Hospitals (Part 482)
    D. Requirements for States and Long-Term Care (LTC) Facilities 
(Part 483)
    E. Conditions of Participation: Community Mental Health Centers 
(CMHCs) (Part 485, Subpart J)
III. Collection of Information Requirements
IV. Response to Comments
V. Regulatory Impact Statement
Regulations Text

I. Background

A. United States v. Windsor Decision

    In United States v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013), 
the Supreme Court held that section 3 of the Defense of Marriage Act 
(DOMA) is unconstitutional because it violates the Fifth Amendment (See 
Windsor, 133 S. Ct.2675, 2695). Section 3 of DOMA, provided that in 
determining the meaning of any Act of the Congress, or of any ruling, 
regulation, or interpretation of the various administrative bureaus and 
agencies of the United States, the word `marriage' meant only a legal 
union between one man and one woman as husband and wife, and the word 
`spouse' could refer only to a person of the opposite sex who was a 
husband or a wife (1 U.S.C. 7).
    The Supreme Court concluded that this section, by prohibiting 
Federal recognition of same-sex marriages that were lawfully entered 
into or recognized under state law, ``undermines both the public and 
private significance of state-sanctioned same-sex marriages'' and found 
that ``no legitimate purpose'' overcomes section 3's ``purpose and 
effect to disparage and to injure those whom the State, by its marriage 
laws, sought to protect'' (Windsor, 133 S. Ct. at 2694-95). Following 
the Supreme Court's opinion in Windsor, the Federal government is 
permitted to recognize the validity of same-sex marriages when 
administering Federal statutes and programs. And HHS has adopted a 
policy of treating same-sex marriages on the same terms as opposite-sex 
marriages to the greatest extent reasonably possible.

[[Page 73874]]

    This proposed rule would revise certain conditions of participation 
(CoPs) for providers, conditions for coverage (CfCs) for suppliers, and 
requirements for long-term care facilities to ensure that the 
requirements at issue are consistent with the Windsor decision and HHS 
policy to treat same-sex marriages on the same terms as opposite-sex 
marriages to the greatest extent reasonably possible. As discussed in 
detail below, we propose to revise certain definitions and patient's 
rights provisions to ensure that legally married same-sex spouses are 
recognized and afforded equal rights in Medicare and Medicaid 
participating facilities. For all Medicare and Medicaid provider and 
supplier types, we have conducted a review of the Code of Federal 
Regulations (CFR) for instances in which our regulations draw on state 
law for purposes of defining ``representative'', ``spouse'', and 
similar terms in which reference to a spousal relationship is explicit 
or implied. We have identified 9 provisions that we believe should be 
revised in light of the Windsor decision and HHS policy. Currently, 
these provisions could be interpreted to support the denial of Federal 
rights and privileges to a same-sex spouse if the state of residence 
does not recognize same-sex marriages. If we do not make these 
revisions, our regulations would not afford equal treatment in Medicare 
and Medicaid participating facilities to same-sex spouses whose 
marriages were lawfully celebrated in jurisdictions that recognize 
same-sex marriage. In light of the Windsor decision and HHS policy, we 
believe that it is appropriate to revise these CoPs, CfCs, and 
requirements to ensure that these valid same-sex marriages are treated 
on the same terms as opposite-sex marriages in these Federal programs. 
The applicable provisions are located in the CoPs and CfCs for 
Ambulatory Surgical Centers (ASCs), Hospices, Hospitals, Long-Term Care 
(LTC) facilities, and Community and Mental Health Centers (CMHCs). We 
note that we did not find any regulations that we believe require 
amendment to achieve our policy goals for equal treatment within the 
CoPs and CfCs for the other provider and supplier types; therefore they 
are not included in this regulation. However, we want to emphasize that 
the Windsor decision and HHS policy affect all provider and supplier 
types. In addition, on December 12, 2014, CMS issued guidance to state 
survey agencies regarding the impact of the Supreme Court's decision in 
United States v. Windsor on how references to terms such as ``spouse'', 
``marriage'', ``family'', and ``representative'' should be interpreted 
in our regulations and the associated guidance concerning current CoPs, 
CfCs, and requirements except where the applicable regulation 
specifically requires application or interpretation in accordance with 
state law. With respect to those regulations that did not explicitly 
bar such an interpretation, we have taken the approach in our guidance 
that such terms include a same-sex spouse, regardless of where the 
couple resides or the jurisdiction in which the provider or supplier 
providing health care services to the individual is located, if the 
same-sex marriage was lawful where entered into and, if the marriage 
was celebrated in a foreign jurisdiction, it would be recognized in at 
least one state.
    We also note that on September 27, 2013 and May 30, 2014, we issued 
Windsor-related guidance regarding Medicaid eligibility determinations 
(SHO #13-006, available at http://medicaid.gov/Federal-Policy-Guidance/Downloads/SHO-13-006.pdf and SHO #14-005, available at http://www.medicaid.gov/Federal-Policy-Guidance/Downloads/SMD-14-005.pdf) on 
the implications of the Windsor decision for state flexibility 
regarding the recognition of same-sex marriages in determining 
eligibility for Medicaid and the Children's Health Insurance Program 
(CHIP). We note that Medicaid eligibility and CoP/CfC policies 
addressed in this proposed rule are administered by different statutes 
and are administered by state Medicaid agencies and CMS, respectively.
    This proposed rule addresses certain regulations governing Medicare 
and Medicaid participating providers and suppliers where current 
regulations look to state law in a matter that implicates (or may 
implicate) a marital relationship. Our goal is to provide equal 
treatment to spouses, regardless of their sex, whenever the marriage 
was valid in the jurisdiction in which it was entered into, without 
regard to whether the marriage is also recognized in the state of 
residence or the jurisdiction in which the health care provider or 
supplier is located, and where the Medicare program explicitly or 
impliedly provides for specific treatment of spouses.

B. Statutory and Regulatory Authority

    Various sections of the Social Security Act (the Act) define the 
various terms that the Medicare program employs with respect to each 
provider and supplier type and list the requirements that each provider 
and supplier must meet to be eligible for Medicare and Medicaid 
participation. Each statutory provision also specifies that the 
Secretary of Health and Human Services (the Secretary) may establish 
other requirements as the Secretary finds necessary in the interest of 
the health and safety of patients, although the exact wording of such 
authority may differ slightly among different provider and supplier 
types.
    Given the desire to expedite the proposed changes and the common 
rationale for each proposed change, we believe the most prudent course 
of action is to publish these proposed revisions concerning the 
different providers and suppliers at issue in a single proposed rule. 
The following are the statutory authorities for the regulatory 
revisions we are proposing:
     Ambulatory Surgical Centers (ASCs)--section 
1832(a)(2)(F)(i) of the Act.
     Hospices--section 1861(dd)(2)(G) of the Act.
     Hospitals--section 1861(e)(9) of the Act.
     Long-Term Care (LTC) Facilities: Skilled Nursing 
Facilities (SNFs)--section 1819(d)(4)(B) of the Act, Nursing Facilities 
(NFs)--section 1919(d)(4)(B) of the Act.
     Community Mental Health Centers (CMHCs)--section 
1861(ff)(3)(B)(iv) of the Act, section 1913(c)(1) of the Public Health 
Service Act (42 U.S.C. 201 et seq.).

II. Provisions of the Proposed Regulations

    Consistent with the U.S. Supreme Court's holding in United States 
v. Windsor and HHS policy, for purposes of the CoPs and CfCs at issue, 
we are proposing to recognize marriages between individuals of the same 
sex who were lawfully married under the law of the state, territory, or 
foreign jurisdiction where the marriage was entered into (``celebration 
rule'') (assuming at least one state would recognize the marriage), 
regardless of where the couple resides or the jurisdiction in which the 
provider or supplier providing health care services to the individual 
is located, regardless of any state law to the contrary. We are 
proposing revisions to provisions throughout the CoPs and CfCs that 
draw on state-law definitions of ``representative'', ``spouse,'' or 
similar terms that can implicate a spousal relationship. These 
revisions would promote equality and ensure the recognition of the 
validity of same-sex marriages when administering the patient rights 
and services at issue.

[[Page 73875]]

Below, we describe each of the proposed revisions.

A. Ambulatory Surgical Centers Condition for Coverage--Patient Rights 
(Sec.  416.50)

    Section 416.50 sets forth the requirements that an ASC must follow 
when informing a patient or a patient's representative or surrogate of 
the patient's rights. Current regulations at Sec.  416.50(e)(3) look to 
state law to determine a patient's legal representative or surrogate in 
situations where a state court has not adjudged a patient incompetent. 
We propose to add language at paragraph (e)(3) that would establish the 
requirement that the same-sex spouse of a patient must be afforded 
treatment equal to that afforded to an opposite-sex spouse if the 
marriage was valid in the jurisdiction in which it was celebrated.

B. Hospice Care (42 CFR Part 418)

1. Definitions (Sec.  418.3)
    Section 418.3 sets forth the definition of ``representative'' when 
used throughout Part 418 as related to hospice care. Currently, the 
definition provides that a representative is an individual who has the 
authority under state law (whether by statute or pursuant to an 
appointment by the courts of the state) to authorize or terminate 
medical care or to elect or revoke the election of hospice care on 
behalf of a terminally ill patient who is mentally or physically 
incapacitated; in addition, the term may include a guardian under the 
regulatory definition. We propose to revise the definition of 
``representative'' to provide that a same-sex spouse in a marriage that 
was valid in the jurisdiction in which it was celebrated must be 
treated as a ``spouse'' wherever state law authorizes a ``spouse'' to 
be a representative, but a court has not appointed a specific 
representative. We intend for the hospice to use a celebration rule in 
recognizing the same-sex spouse of a patient, regardless of whether the 
law in the jurisdiction where the patient or spouse resides or where 
the hospice is located recognizes the same-sex spouse.
2. Condition of Participation: Patient's Rights (Sec.  418.52(b)(3))
    Section 418.52 sets forth the requirements for a hospice to inform 
a patient of his or her rights. Current regulations at Sec.  
418.52(b)(3) require a hospice to allow a patient's legal 
representative to exercise the patient's rights to the extent allowed 
by state law, if the patient has not been adjudged incompetent by a 
state court. Regulations at Sec.  418.52(b)(3) refer to a 
representative ``designated by the patient in accordance with state 
law.'' We propose to add at paragraph (b)(3), language that establishes 
the requirement that the same-sex spouse of a patient must be afforded 
treatment equal to that afforded to an opposite-sex spouse if the 
marriage was valid in the jurisdiction in which it was celebrated.

C. Conditions of Participation for Hospitals (Part 482)

1. Condition of Participation: Patient's Rights (482.13)
    Regulations at Sec.  482.13 set forth the requirements that a 
hospital must meet to protect and promote each patient's rights. 
Sections 482.13(a)(1) and Sec.  482.13(b)(2), respectively, require a 
hospital to ``inform each patient, or, when appropriate, the patient's 
representative (as allowed under state law), of the patient's rights, 
in advance of furnishing or discontinuing care,'' and afford the 
patient ``the right to make informed decisions regarding his or her 
care.'' We propose to add at Sec.  482.13(a)(1) and Sec.  482.13(b)(2) 
the requirement that the same-sex spouse of a patient must be afforded 
treatment equal to that afforded to an opposite-sex spouse if the 
marriage is valid in the jurisdiction in which it was celebrated.
2. Condition of Participation: Laboratory Services (Sec.  482.27)
    Regulations at Sec.  482.27 require that a hospital must maintain, 
or have available, adequate laboratory services to meet the needs of 
its patients. Regulations at Sec.  482.27(b) require hospitals to 
screen blood and blood products for potentially infectious diseases 
(specifically, the HIV virus and Hepatitis C virus) and to notify 
donors and patients as necessary. Section 482.27(b)(10) addresses 
notification both when the patient has been adjudged incompetent by a 
state court and when the patient is competent. In the case of a patient 
who is adjudged incompetent by a state court, the physician or hospital 
must notify a ``legal representative designated in accordance with 
state law.'' When the patient is competent, but state law permits a 
legal representative or relative to receive the information on the 
patient's behalf, the physician or hospital must notify the patient or 
patient's legal representative or relative. We propose to add at Sec.  
482.27(b)(10) the requirement that the same-sex spouse of a patient 
must be afforded treatment equal to that afforded to an opposite-sex 
spouse if the marriage is valid in the jurisdiction in which it was 
celebrated. This requirement would apply when state law designates or 
identifies a ``spouse'' as a legal representative in case of either 
competency or incompetency.

D. Requirements for States and Long-Term Care (LTC) Facilities (42 CFR 
Part 483)

1. Resident Rights (Sec.  483.10)
    Regulations at Sec.  483.10 give residents the right to a dignified 
existence, self-determination, and communication with and access to 
persons and services inside and outside a facility. The regulations 
also require LTC facilities to protect and promote the rights of each 
resident. Under Sec.  483.10(a)(4), when a resident has not been 
adjudged incompetent, any ``legal surrogate designated in accordance 
with state law'' may exercise such rights to the extent provided by 
state law. We propose to add language to Sec.  483.10(a)(4) that would 
establish a requirement that, the same-sex spouse of a resident must be 
afforded treatment equal to that afforded to an opposite-sex spouse if 
the marriage was valid in the jurisdiction in which it was celebrated.
2. Preadmission Screening and Resident Review (PASRR) Evaluation 
Criteria (Sec.  483.128)
    Regulations at Sec.  483.128 set forth the criteria for a PASRR 
(currently abbreviated as PASARR in the regulations) evaluation. 
Section 483.128(c) specifies who must participate in the evaluation 
process, and paragraph (c)(2) requires that the individual's legal 
representative must participate, if one has been designated under state 
law. At Sec.  483.128(c)(2), we propose to clarify that a same-sex 
spouse would be recognized and treated the same as an opposite-sex 
spouse if the marriage was valid in the jurisdiction in which it was 
celebrated.
    In addition, regulations at Sec.  483.128(k) require that for both 
categorical and individualized determinations, findings of the 
evaluation must be interpreted and explained to the individual and, 
where applicable, a legal representative designated under state law. We 
propose a similar revision here to provide that, a same-sex spouse 
would be recognized and treated the same as an opposite-sex spouse if 
the same-sex marriage was valid in the jurisdiction in which it was 
celebrated.

[[Page 73876]]

E. Conditions of Participation: Community Mental Health Centers (CMHCs) 
(Part 485, Subpart J)

1. Definitions (Sec.  485.902)
    Regulations at Sec.  485.902 set forth the definition of 
``representative'' when used throughout Part 485, subpart J as related 
to care in CMHCs. We propose to revise the definition of 
``representative'' to provide that the same-sex spouse of a client must 
be afforded treatment equal to that afforded to an opposite-sex spouse 
if the marriage was valid in the jurisdiction in which it was 
celebrated.
2. Condition of Participation: Client Rights (485.910(b)(3))
    Regulations at Sec.  485.910 require CMHCs to inform a client of 
his or her rights and protect and promote the exercise of these client 
rights. Section 485.910(b)(3) requires that, in the case of a client 
who has not been adjudged incompetent by the State court, ``any legal 
representative designated by the client in accordance with state law'' 
may exercise the client's rights to the extent allowed under state law. 
We propose to add to this provision the requirement that the same-sex 
spouse of a client must be afforded treatment equal to that afforded to 
an opposite-sex spouse if the marriage was lawful in the jurisdiction 
in which it was celebrated.

III. Collection of Information Requirements

    This document does not impose any new information collection 
requirements, that is, reporting, recordkeeping or third-party 
disclosure requirements, as defined under the Paperwork Reduction Act 
of 1995 (44 U.S.C. ch. 35). However, it does make reference to existing 
information collection requirements; specifically, this document 
references disclosure requirements contained in Sec.  482.13(a)(1) and 
Sec.  482.27(b)(10). These requirements are already accounted for in 
the ICR associated with OMB control number 0938-0328. We are in the 
process of reinstating the ICR under 0938-0328 and will complete that 
process under notice and comment periods separate from those associated 
with this notice of proposed rulemaking.

IV. Response to Comments

    Because of the large number of public comments we normally receive 
on Federal Register documents, we are not able to acknowledge or 
respond to them individually. We will consider all comments we receive 
by the date and time specified in the DATES section of this preamble, 
and, when we proceed with a subsequent document, we will respond to the 
comments in the preamble to that document.

V. Regulatory Impact Statement

    We have examined the impact of this rule as required by Executive 
Order 12866 on Regulatory Planning and Review (September 30, 1993), 
Executive Order 13563 on Improving Regulation and Regulatory Review 
(January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 
1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, 
section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 
1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 
1999) and the Congressional Review Act (5 U.S.C. 804(2)).
    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). A 
regulatory impact analysis (RIA) must be prepared for major rules with 
economically significant effects ($100 million or more in any 1 year). 
This rule does not reach the economic threshold and thus is not 
considered a major rule.
    The RFA requires agencies to analyze options for regulatory relief 
of small entities. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and small governmental 
jurisdictions. Most hospitals and most other providers and suppliers 
are small entities, either by nonprofit status or by having revenues of 
less than $7.0 million to $35.5 million in any 1 year. Individuals and 
States are not included in the definition of a small entity. We are not 
preparing an analysis for the RFA because we have determined, and the 
Secretary certifies, that this proposed rule would not have a 
significant economic impact on a substantial number of small entities.
    In addition, section 1102(b) of the Social Security Act requires us 
to prepare a regulatory impact analysis if a rule may have a 
significant impact on the operations of a substantial number of small 
rural hospitals. This analysis must conform to the provisions of 
section 603 of the RFA. For purposes of section 1102(b) of the Act, we 
define a small rural hospital as a hospital that is located outside of 
a Metropolitan Statistical Area for Medicare payment regulations and 
has fewer than 100 beds. We are not preparing an analysis for section 
1102(b) of the Act because we have determined, and the Secretary 
certifies, that this proposed rule would not have a significant impact 
on the operations of a substantial number of small rural hospitals.
    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2014, that 
threshold is approximately $141 million. This rule will have no 
consequential effect on State, local, or tribal governments or on the 
private sector.
    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. Since this regulation does not impose any costs on State 
or local governments, the requirements of Executive Order 13132 are not 
applicable.
    In accordance with the provisions of Executive Order 12866, this 
regulation was reviewed by the Office of Management and Budget.

List of Subjects

42 CFR Part 416

    Health facilities, Health professions, Medicare, Reporting and 
recordkeeping requirements.

42 CFR Part 418

    Health facilities, Hospice care, Medicare, Reporting and 
recordkeeping requirements.

42 CFR Part 482

    Grant programs--health, Hospitals, Medicaid, Medicare, Reporting 
and recordkeeping requirements.

42 CFR Part 483

    Grant programs--health, Health facilities, Health professions, 
Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting 
and recordkeeping requirements, Safety.

42 CFR Part 485

    Grant programs--health, Health facilities, Medicaid, Medicare, 
Reporting and recordkeeping requirements.
    For the reasons set forth in the preamble, the Centers for Medicare 
& Medicaid Services proposes to amend 42 CFR chapter IV as set forth 
below:

[[Page 73877]]

PART 416--AMBULATORY SURGICAL SERVICES

0
1. The authority citation for Part 416 continues to read as follows:

    Authority:  Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

0
2. In Sec.  416.50 paragraph (e)(3) is revised to read as follows:

Sec.  416.50  Condition for coverage: Patient's rights.

* * * * *
    (e) * * *
    (3) If a State court has not adjudged a patient incompetent, any 
legal representative or surrogate designated by the patient may 
exercise the patient's rights to the extent allowed by state law 
regarding the scope of legal representation. The same-sex spouse of a 
patient must be afforded treatment equal to that afforded to an 
opposite-sex spouse if the marriage was valid in the jurisdiction in 
which it was celebrated.
* * * * *

PART 418--HOSPICE CARE

0
3. The authority citation for Part 418 continues to read as follows:

    Authority:  Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395hh).

0
4. Section 418.3 is amended by revising the definition of 
``representative'' to read as follows:

Sec.  418.3  Definitions.

* * * * *
    Representative means an individual who has the authority under 
State law (whether by statute or pursuant to an appointment by the 
courts of the State) to authorize or terminate medical care or to elect 
or revoke the election of hospice care on behalf of a terminally ill 
patient who is mentally or physically incapacitated. This may include a 
legal guardian. The same-sex spouse of a patient must be afforded 
treatment equal to that afforded to an opposite-sex spouse if the 
marriage was valid in the jurisdiction in which it was celebrated. If a 
state court has appointed a representative, that person is the 
representative for these purposes.
* * * * *
0
5. In Sec.  418.52, paragraph (b)(3) is revised to read as follows:

Sec.  418.52  Condition of participation: Patient's rights.

* * * * *
    (b) * * *
    (3) If a state court has not adjudged a patient incompetent, any 
legal representative designated by the patient in accordance with state 
law may exercise the patient's rights to the extent allowed by state 
law. The same-sex spouse of a patient must be afforded treatment equal 
to that afforded to an opposite-sex spouse if the marriage was valid in 
the jurisdiction in which it was celebrated.
* * * * *

PART 482--CONDITIONS OF PARTICIPATION FOR HOSPITALS

0
6. The authority citation for part 482 continues to read as follows:

    Authority:  Secs. 1102, 1871, and 1881 of the Social Security 
Act (42 U.S.C. 1302, 1395hh, and 1395rr), unless otherwise noted.

0
7. In 482.13, revise paragraph (a)(1) and (b)(2) to read as follows:

Sec.  482.13  Condition of participation: Patient's rights.

* * * * *
    (a) * * *
    (1) A hospital must inform each patient, or when appropriate, the 
patient's representative (as allowed under State law), of the patient's 
rights, in advance of furnishing or discontinuing patient care whenever 
possible. The same-sex spouse of a patient must be afforded treatment 
equal to that afforded to an opposite-sex spouse if the marriage was 
valid in the jurisdiction in which it was celebrated.
* * * * *
    (b) * * *
    (2) The patient or his or her representative (as allowed under 
State law) has the right to make informed decisions regarding his or 
her care. The same-sex spouse of a patient must be afforded treatment 
equal to that afforded to an opposite-sex spouse if the marriage was 
valid in the jurisdiction in which it was celebrated. The patient's 
rights include being informed of his or her health status, being 
involved in care planning and treatment, and being able to request or 
refuse treatment. This right must not be construed as a mechanism to 
demand the provision of treatment or services deemed medically 
unnecessary or inappropriate.
* * * * *
0
8. In 482.27, paragraph (b)(10) is revised to read as follows:

Sec.  482.27  Condition of participation: Laboratory services.

* * * * *
    (b) * * *
    (10) Notification to legal representative or relative. If the 
patient has been adjudged incompetent by a State court, the physician 
or hospital must notify a legal representative designated in accordance 
with State law. If the patient is competent, but State law permits a 
legal representative or relative to receive the information on the 
patient's behalf, the physician or hospital must notify the patient or 
his or her legal representative or relative. The same-sex spouse of a 
patient must be afforded treatment equal to that afforded to an 
opposite-sex spouse if the marriage was valid in the jurisdiction in 
which it was celebrated. For possible HIV infectious transfusion 
beneficiaries that are deceased, the physician or hospital must inform 
the deceased patient's legal representative or relative. If the patient 
is a minor, the parents or legal guardian must be notified.
* * * * *

PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES

0
9. The authority citation for part 483 continues to read as follows:

    Authority:  Secs. 1102, 1128I and 1871 of the Social Security 
Act (42 U.S.C. 1302, 1320a-7j, and 1395hh).

0
10. In Sec.  483.10, paragraph (a)(4) is revised to read as follows:

Sec.  483.10  Resident's rights.

* * * * *
    (a) * * *
    (4) In the case of a resident who has not been adjudged incompetent 
by the state court, any legal-surrogate designated in accordance with 
state law may exercise the resident's rights to the extent provided by 
state law. The same-sex spouse of a resident must be afforded treatment 
equal to that afforded to an opposite-sex spouse if the marriage was 
valid in the jurisdiction in which it was celebrated.
* * * * *
0
11. In Sec.  483.128, paragraphs (c)(2) and (k) are revised to read as 
follows:

Sec.  483.128  PASARR evaluation criteria.

* * * * *
    (c) * * *
    (2) The individual's legal representative, if one has been 
designated under state law. The same-sex spouse of a patient must be 
afforded treatment equal to that afforded to an opposite-sex spouse if 
the marriage was valid in the jurisdiction in which it was celebrated; 
and
* * * * *
    (k) Interpretation of findings to individual. For both categorical 
and individualized determinations, findings of the evaluation must be 
interpreted and explained to the individual and, where applicable, to a 
legal representative designated under state law. The same-sex spouse of 
a resident

[[Page 73878]]

must be afforded treatment equal to that afforded to an opposite-sex 
spouse if the marriage was valid in the jurisdiction in which it was 
celebrated.
* * * * *

PART 485--CONDITIONS OF PARTICIPATION: SPECIALIZED PROVIDERS

0
12. The authority citation for part 485 continues to read as follows:

    Authority:  Secs. 1102 and 1871 of the Social Security Act (42 
U.S.C. 1302 and 1395(hh)).

0
13. Section 485.902 is amended by revising the definition of 
``representative'' to read as follows:

Sec.  485.902  Definitions.

* * * * *
    Representative means an individual who has the authority under 
State law to authorize or terminate medical care on behalf of a client 
who is mentally or physically incapacitated. This includes a legal 
guardian. The same-sex spouse of a client must be afforded treatment 
equal to that afforded to an opposite-sex spouse if the marriage was 
valid in the jurisdiction in which it was celebrated.
* * * * *
0
14. In Sec.  485.910, paragraph (b)(3) is revised to read as follows:

Sec.  485.910  Condition of participation: Client rights.

* * * * *
    (b) * * *
    (3) If the State court has not adjudged a client incompetent, any 
legal representative designated by the client is accordance with State 
law may exercise the client's rights to the extent allowed under State 
law. The same-sex spouse of a client must be afforded treatment equal 
to that afforded to an opposite-sex spouse if the marriage was valid in 
the jurisdiction in which it was celebrated.
* * * * *

    Dated: June 12, 2014.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
    Approved: June 18, 2014.
Sylvia M. Burwell,
Secretary, Department of Health and Human Services.
[FR Doc. 2014-28268 Filed 12-11-14; 8:45 am]
BILLING CODE 4120-01-P
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