[Federal Register Volume 80, Number 30 (Friday, February 13, 2015)]
[Rules and Regulations]
[Pages 7975-7977]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03069]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

42 CFR Parts 406, 407, and 408

[CMS-4176-NR]


Announcement of Ruling: Implementing United States v. Windsor for 
Purposes of Entitlement and Enrollment in Medicare Hospital Insurance 
and Supplementary Medical Insurance

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

ACTION: Notice of CMS ruling.

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SUMMARY: This document announces a CMS Ruling that states the CMS 
policies for implementing United States v. Windsor (``Windsor''), in 
which the Supreme Court held that section 3 of the Defense of Marriage 
Act (DOMA), enacted in 1996, is unconstitutional. Section 3 of DOMA 
defined ``marriage'' and ``spouse'' as excluding same-sex marriages and 
same-sex spouses, and effectively precluded the Federal government from 
recognizing same-sex marriages and spouses.

DATES: The CMS ruling announced in this document is applicable 
beginning February 9, 2015, with respect to appeals pending on, 
initiated, or reopened in accordance with applicable rules after 
February 9, 2015, for entitlement and enrollment determinations made on 
or after June 26, 2013. This ruling does not apply to appeals of 
entitlement and enrollment determinations made before June 26, 2013.

FOR FURTHER INFORMATION CONTACT: Patty Helphenstine (410) 786-0622.

SUPPLEMENTARY INFORMATION: In ``Windsor,'' (570 U.S. 12, 133 S. Ct. 
2675 (2013), the Supreme Court held that section 3 of the Defense of 
Marriage Act (DOMA), enacted in 1996 (codified at 1 U.S.C. 7), is 
unconstitutional.
    The CMS Administrator signed Ruling CMS-4176-R on February 9, 2015. 
This CMS Ruling, as well as other CMS Rulings are available at http://www.cms.gov/Regulations-and-Guidance/Guidance/Rulings/index.html. For 
the readers' convenience, the text of the CMS Ruling 4176-R is set 
forth in the Appendix to this notice of CMS ruling.

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)

    Dated: February 9, 2015.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.

APPENDIX

CMS Rulings

Department of Health and Human Services

Centers for Medicare & Medicaid Services

Ruling No.: CMS-4176-R
Date: February 9, 2015
    Centers for Medicare & Medicaid Services (CMS) Rulings are 
decisions of the Administrator of CMS that serve as precedential final 
opinions, orders and statements of policy and interpretation. They 
provide clarification and interpretation of complex provisions of the 
law or regulations relating to Medicare, Medicaid, Utilization and 
Quality Control Peer Review, private health insurance, and related 
matters. They are published under the authority of the Administrator.
    CMS Rulings are binding on all CMS components, Part A and Part B 
Medicare Administrative Contractors (MACs), Qualified Independent 
Contractors (QICs), the Provider Reimbursement Review Board, the 
Medicare Geographic Classification Review Board, and on the Medicare 
Appeals Council and Administrative Law Judges (ALJs) who hear Medicare 
appeals. Rulings promote consistency in interpretation of policy and 
adjudication of disputes.
    This Ruling states the CMS policies for implementing United States 
v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013) (``Windsor''), in which 
the Supreme Court held that section 3 of the Defense of Marriage Act 
(DOMA), enacted in 1996 (codified at 1 U.S.C. 7), is unconstitutional. 
Section 3 of DOMA defined ``marriage'' and ``spouse'' as excluding 
same-sex marriages and same-sex spouses, and effectively precluded the 
Federal government from recognizing same-sex marriages and spouses.

MEDICARE PROGRAM

    Entitlement and Enrollment in Medicare Hospital Insurance (Part A) 
and Medicare Supplementary Medical Insurance (Part B)
    CITATIONS: Sections 216(h), 226, 226A, 1818(c)-(d), 1837(i) and 
1839 of the Social Security Act (42 U.S.C. Sections 416, 426, 426-1, 
1395i-2, 1395p and 1395r); 42 CFR 406.5, 406.10, 406.13, 406.24, 
406.32(c)-(d), 406.33, 406.34, 407.20, 407.22(a)(5), 407.25(c), 
407.27(b), 408.22 and 408.24.

[[Page 7976]]

BACKGROUND

    Section 3 of the Defense of Marriage Act (DOMA), enacted in 1996 
(codified at 1 U.S.C. 7), defined ``marriage'' and ``spouse'' as 
follows: ``The word `marriage' means only a legal union between one man 
and one woman as husband and wife, and the word `spouse' refers only to 
a person of the opposite sex who is a husband or a wife.'' However, in 
June 2013, the United States Supreme Court ruled that Section 3 of DOMA 
is unconstitutional. United States v. Windsor, 570 U.S. 12, 133 S. Ct. 
2675 (2013) (``Windsor''). After the Supreme Court's opinion in 
Windsor, section 3 of DOMA no longer prohibits the Federal government 
from recognizing same-sex marriages when administering Federal statutes 
and programs and no longer controls the definition and recognition of a 
marital relationship in that context.
    Marital status is relevant to certain Medicare entitlements, 
premiums, benefits, and enrollment provisions. This Ruling provides 
binding CMS policy for the application of these provisions in the 
context of a same-sex marriage.

RULING

    This Ruling states the CMS policies for implementing United States 
v. Windsor, 570 U.S. 12, 133 S. Ct. 2675 (2013) for purposes of certain 
entitlement, eligibility and enrollment provisions for Medicare. Note 
that the rules for recognizing a same-sex marriage (and treatment of a 
same-sex relationship that is not a marriage) for purposes of 
eligibility and entitlement controlled by Title II of the Social 
Security Act (the Act) are different than the rules for recognizing a 
same-sex marriage (and treatment of a same-sex relationship that is not 
a marriage) for benefits provided under Title XVIII of the Act.

POLICY

    Because section 3 of DOMA is unconstitutional, it no longer defines 
or controls the recognition of a marital relationship by the Federal 
government. In the absence of controlling law to the contrary, the 
Department of Health and Human Services (HHS) has adopted a policy of 
treating same-sex marriages on the same terms as opposite-sex marriages 
to the greatest extent reasonably possible and of recognizing 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''), regardless of where the couple 
resides. As a general matter, for determinations made solely under 
Title II of the Act, we note that rules applicable specifically to 
Title II of the Act apply. In addition, for determinations made under 
Title XVIII, we note that rules applicable specifically to Title XVIII 
of the Act apply.

Title II Provisions

    Title II determinations within the scope of this Ruling are 
eligibility for Medicare based on age or end-stage renal disease under 
sections 226 and 226A of the Act. Section 216 of the Act explicitly 
provides the definitions of terms describing the marital relationship 
and directs recognition and deeming of marital relationships for all of 
Title II of the Act. As a result, section 216 of the Act is the 
controlling provision in determining family and marital status for 
purposes of eligibility for Medicare when eligibility is based on a 
provision under Title II of the Act. Section 216(h)(1)(A)(i) explicitly 
controls recognition of a marriage:
    An applicant is the wife, husband, widow, or widower of a fully or 
currently insured individual for purposes of this subchapter if the 
courts of the State in which such insured individual is domiciled at 
the time such applicant files an application, or, if such insured 
individual is dead, the courts of the State in which he was domiciled 
at the time of death, or, if such insured individual is or was not so 
domiciled in any State, the courts of the District of Columbia, would 
find that such applicant and such insured individual were validly 
married at the time such applicant files such application or, if such 
insured individual is dead, at the time he died.

The Social Security Administration (SSA) has issued policies 
interpreting and implementing section 216 of the Act in the context of 
same-sex marriages and other relationships. Generally, such policies 
look to the law of the domicile of the social security number holder to 
determine whether to recognize a marriage. Such interpretations of 
section 216(h) are applicable for purposes of entitlement and 
eligibility determinations under sections 226 and 226A. The SSA has 
interpreted and directed the application of section 216(h) in the 
following Program Operations Manual System (POMS) sections issued by 
SSA:
    <bullet> GN 00210.002: Same-Sex Marriage--Determining Marital 
Status for Title II and Medicare Benefits.
    <bullet> GN 00210.003: Same-Sex Marriage--Dates States Permitted or 
Recognized Same-Sex Marriage.
    <bullet> GN 00210.004: Non-Marital Relationships (Such as Civil 
Unions and Domestic Partnerships).
    <bullet> GN 00210.006: Same-Sex Marriages Celebrated in Foreign 
Jurisdictions.
    CMS follows SSA interpretations on the application of section 
216(h) to same sex marriages and same sex spouses for purposes of Title 
II. CMS policy illustrating the application of these policies to 
determinations made under sections 226 and 226A is articulated in the 
following POMS sections issued by SSA:
    Entitlement under section 226 and 42 CFR 406.5 and 406.10:
    <bullet> GN 00210.100: Same-Sex Marriage and Non-Marital Legal 
Relationships--Benefits for Aged Spouses.
    <bullet> GN 00210.400: Same-Sex Marriage--Benefits for Surviving 
Spouses.
    Entitlement under section 226A and 42 CFR 406.5 and 406.13:
    <bullet> GN 00210.705: Same-Sex Marriage--Medicare Based on End-
Stage Renal Disease (ESRD).

Title XVIII Provisions

    There are no controlling provisions in Title XVIII of the Act or 
regulations implementing the Title XVIII provisions within the scope of 
this Ruling that define or direct recognition or deeming of marital 
relationships. Therefore, CMS has adopted a policy of interpreting 
sections 1818(d), 1837(i) and 1839 of the Act in a manner that treats 
same-sex marriages on the same terms as opposite-sex marriages to the 
greatest extent reasonably possible and uses a celebration rule where 
possible. ``Celebration rule'' means that a same-sex marriage is 
recognized and treated as a lawful marriage (where marital status is 
relevant to a determination of entitlement) if the same-sex marriage 
was lawful where and when it occurred. Individuals in non-marital same-
sex relationships (such as domestic partnerships or civil unions that 
are not marriages) are not considered married.
    The SSA processes applications and initial eligibility 
determinations under these statutes by applying CMS policy. CMS policy 
for the implementation of Windsor in the context of these Title XVIII 
provisions is articulated in the POMS sections issued by the SSA as 
follows:
    Calculation of hospital insurance (Part A) premium under section 
1818(d) and 42 CFR 406.32(c):
    <bullet> GN 00210.706: Same-Sex Marriage--HI Premium Reduction for 
Aged and Disabled Individuals.
    Eligibility for a special enrollment period based on enrollment in 
a group health plan by reason of a spouse's

[[Page 7977]]

current employment under sections 1818(c) and 1837(i) and 42 CFR 
406.24, 407.20, 407.22, 407.25, and 407.27:
    <bullet> GN 00210.700: Same-Sex Marriage--Eligibility for Medicare 
Special Enrollment Period (SEP).
    Calculation of late enrollment penalty for premium hospital 
insurance (Premium Part A) and supplemental medical insurance (Part B) 
under section 1818(c) and 1839 and 42 CFR 406.32(d), 406.33, 406.34, 
408.22, and 408.24:
    <bullet> GN 00210.701: Same-Sex Marriage--Premium Surcharge 
Rollback.

EFFECTIVE DATE

    This Ruling is effective on February 9, 2015, with respect to 
appeals on, initiated, or reopened in accordance with applicable rules 
after February 9, 2015, for entitlement and enrollment determinations 
made on or after June 26, 2013. This ruling does not apply to appeals 
of entitlement and enrollment determinations made before June 26, 2013.
    Dated: February 9, 2015
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Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.

[FR Doc. 2015-03069 Filed 2-12-15; 8:45 am]
BILLING CODE 4120-01-P