[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:
GN 00210.002: Same-Sex Marriage--Determining Marital
Status for Title II and Medicare Benefits.
GN 00210.003: Same-Sex Marriage--Dates States Permitted or
Recognized Same-Sex Marriage.
GN 00210.004: Non-Marital Relationships (Such as Civil
Unions and Domestic Partnerships).
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:
GN 00210.100: Same-Sex Marriage and Non-Marital Legal
Relationships--Benefits for Aged Spouses.
GN 00210.400: Same-Sex Marriage--Benefits for Surviving
Spouses.
Entitlement under section 226A and 42 CFR 406.5 and 406.13:
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):
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:
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:
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