HHS: DOMA Not an Excuse for Denial of Equality in LGBT Elder Medicaid Care
The Department of Health and Human Services issued new guidelines last week highlighting that there is no reason under the Defense of Marriage Act why states, through their Medicaid programs, cannot provide same-sex couples with equal access to the monetary protections heterosexual couples receive when a partner enters a nursing home or an elder care facility.
The guidelines, spelled out in a letter from HHS Secretary Kathleen Sebelius to state directors of Medicaid programs, do not establish any new rules but do serve to reinforce that, for instance, agencies are within their jurisdiction to help ensure same-sex partners can remain together in shared housing.
“Low-income same-sex couples are too often denied equal treatment and the protections offered to other families in their greatest times of need,” said Health and Human Services Secretary Kathleen Sebelius. “This is now changing. Today’s guidance represents another important step toward ensuring that the rights and dignity of every American are respected by their government. ”
Millions of families each year face difficult decisions associated with placing family members in nursing home care. Medicaid, which is the largest payer of nursing home services in the country, requires individuals in need of care to have exhausted most of their personal income and assets before qualifying for this long-term care benefit. There are protections, however, that ensure that the spouse of a Medicaid nursing home resident may remain in the couple’s home. While states may place liens on the property of an individual needing care, if there is a spouse in the home, states must protect that spouse from having a lien attached to their home. For same-sex couples these protections do not always apply.
Today’s announcement clarifies that states can extend these protections when the same-sex spouse or domestic partner of the Medicaid enrollee continues to reside in their home. The letter also outlines how states can apply other protections to same-sex spouses or domestic partners, for example, by allowing individuals needing institutional care to transfer ownership of their homes without financial penalties. States have the choice of extending these protections.
“Medicaid gives states remarkable flexibility to set these kinds of policies,” said Cindy Mann, deputy administrator of the Centers for Medicare & Medicaid Services (CMS) who directs the Medicaid division within the agency. “We want to assure states that they are within the law when they make the choice to extend equal financial rights and protections to all of their citizens receiving Medicaid services, regardless of sexual orientation.”
This guidance falls short of being a mandate, and while a positive step it does not alter the fact that, under the Defense of Marriage Act, same-sex couples are still left vulnerable.
The main issue is that while states can provide this coverage, there is nothing in the directive that compels them to do so, and as such the flexibility that states are allowed, while aiding those in more accepting states, may facilitate little progress in states where the administration is against same-sex partnership recognition in any form.
For more information or to read the full letter noting this statement, go to www.cms.gov/SMDL/SMD/list.asp.