Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 73873 

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 longterm 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 samesex 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 (§ 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 statesanctioned 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. 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
73874 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

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 samesex 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 samesex 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-PolicyGuidance/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. 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 73875 

Below, we describe each of the 

proposed revisions. 

A. Ambulatory Surgical Centers 

Condition for Coverage—Patient Rights 

(§ 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 

§ 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 samesex 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 (§ 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 (§ 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 § 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 § 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 § 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 

§ 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 

§ 482.13(a)(1) and § 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 (§ 482.27) 

Regulations at § 482.27 require that a 

hospital must maintain, or have 

available, adequate laboratory services 

to meet the needs of its patients. 

Regulations at § 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 § 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 LongTerm Care (LTC) Facilities (42 CFR Part 

483) 

1. Resident Rights (§ 483.10) 

Regulations at § 483.10 give residents 

the right to a dignified existence, selfdetermination, 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 § 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 

§ 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 

(§ 483.128) 

Regulations at § 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 § 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 

§ 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. 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
73876 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

E. Conditions of Participation: 

Community Mental Health Centers 

(CMHCs) (Part 485, Subpart J) 

1. Definitions (§ 485.902) 

Regulations at § 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 § 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 § 482.13(a)(1) 

and § 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: 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 73877 

PART 416—AMBULATORY SURGICAL 

SERVICES 

■ 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). 

■ 2. In § 416.50 paragraph (e)(3) is 

revised to read as follows: 

§ 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 

■ 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). 

■ 4. Section 418.3 is amended by 

revising the definition of 

‘‘representative’’ to read as follows: 

§ 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. 

* * * * * 

■ 5. In § 418.52, paragraph (b)(3) is 

revised to read as follows: 

§ 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 

■ 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. 

■ 7. In 482.13, revise paragraph (a)(1) 

and (b)(2) to read as follows: 

§ 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. 

* * * * * 

■ 8. In 482.27, paragraph (b)(10) is 

revised to read as follows: 

§ 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 

■ 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). 

■ 10. In § 483.10, paragraph (a)(4) is 

revised to read as follows: 

§ 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 samesex 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. 

* * * * * 

■ 11. In § 483.128, paragraphs (c)(2) and 

(k) are revised to read as follows: 

§ 483.128 PASARR evaluation criteria. 

* * * * * 

(c) * * * 

(2) The individual’s legal 

representative, if one has been 

designated under state law. The samesex 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 


rljohnson on DSK3VPTVN1PROD with PROPOSALS
73878 Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules 

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 

■ 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)). 

■ 13. Section 485.902 is amended by 

revising the definition of 

‘‘representative’’ to read as follows: 

§ 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. 

* * * * * 

■ 14. In § 485.910, paragraph (b)(3) is 

revised to read as follows: 

§ 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 


rljohnson on DSK3VPTVN1PROD with PROPOSALS