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Rebecca Farley

Director, Policy & Advocacy, National Council for Behavioral Health

Medicare Updates CMHC Conditions of Participation to Recognize Same-Sex Marriages

December 31, 2014 | Medicare | Comments
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The Centers for Medicare and Medicaid Services has announced it is updating its Conditions of Participation (CoPs) for Community Mental Health Centers (CMHCs) to bring them into compliance with the Supreme Court’s decision on same-sex marriage in United States v. Windsor. Under the new guidance, CMHCs and certain other Medicare-participating providers will be required to recognize clients’ same-sex marriages according to the law of the state where they were performed, regardless of whether such marriages are legal in the state in which the CMHC is located.

While the general term “CMHC” is widely used to refer to a multitude of types of provider agencies, Medicare defines CMHCs narrowly. Under current Medicare regulations, a CMHC is defined as an organization that bills Medicare under the Place of Service Code 53 and provides partial hospitalization services (among other services required in this year’s finalized Conditions of Participation). In contrast, most community-based providers participate with Medicare under the Place of Service Code 11, for outpatient clinics. Click here to learn more about the difference.

“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,” CMS states in its background information on the rule.

United States v. Windsor was the landmark 2013 case in which the Court concluded that portions of the Defense of Marriage Act violated the due process clause of the Fifth Amendment by prohibiting federal recognition of same-sex marriages that were lawfully entered into under state law.

This new proposed rule aims to ensure that Medicare’s CoPs 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. The revisions to the CoPs clarify that where rights are allocated to clients’ spouses, they are also allocated to clients’ same-sex spouses if those same sex marriages were lawful in the state in which they occurred.