The Centers for Medicare & Medicaid Services (CMS) published a significant proposed rule on December 12. It requires various healthcare providers located in states that do not recognize same-sex marriage, to recognize legal same-sex marriages from other states for purposes of determining the legal representatives of their patients.
The proposed rule may be viewed here. CMS derives the basis for the proposed rule from the Supreme Court's decision in Windsor.
The proposed rule would make changes to the "conditions of participation" and "conditions of coverage" that apply to different healthcare providers. These "conditions" are basically just sets of requirements that apply to particular healthcare providers that want to participate in Medicare and Medicaid. For example, if a hospital wants to participate in Medicare, it would need to satisfy all of the "Conditions of Participation for Hospitals." These would be a large number of rules meant to ensure that hospitals are operating safely and with suitable quality. For example, one of the rules requires hospitals to maintain backup power generators for life-sustaining equipment.
Almost all healthcare providers participate in Medicare, and therefore must meet the CMS conditions that apply to them. If CMS adds a new condition, pretty much all of the providers in the country to which the condition applies will need to meet it. A healthcare provider that doesn't meet all of its conditions can be cited by CMS, and eventually kicked out of participating in Medicare and Medicaid. For most providers this would mean going out of business.
The proposed rule would require hospitals in all states, including states that do not recognize same-sex marriage, to recognize for purposes of a patient's legal representative a same-sex spouse, if the patient's same-sex marriage was legal where it took place. For example, if a same-sex couple was legally married in Massachusetts, healthcare providers in Texas (which does not currently recognize same-sex marriage) would need to treat the same-sex couple in the same way as an opposite-sex couple for purposes of things like the spouse participating in the patient's care, and helping to make decisions for the patient if the patient is unconscious or incompetent.
The kinds of healthcare providers subject to the new rule include hospitals, nursing facilities, hospices, ambulatory surgical centers and community mental health centers.
I think this is good news. Because of the normal bureaucracy federal agencies must follow in making new rules, this one will probably not become effective until mid-2015.