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HHS: DOMA Not an Excuse for Denial of Equality in LGBT Elder Medicaid Care

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.

From the HHS news release:

“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

Related Reading:

LGBT Elders Fear Abuse in Long-Term Care Facilities Says New Report

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Photo used under the Creative Commons Attribution License, with thanks to Borya.

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10:05AM PST on Jan 21, 2012

DOMA is stupid and was put into place because the Church "pressured" the Government into passing it. It should be repealed. Marriage should be between two consenting adults, no matter what sex they are, who love/care for each other. Marriage is NO longer a way to sell of ones daughter in exchange for something, it has evolved to be a matter of the heart, a matter of the soul. And ALL sexual orientations have a soul, even if certain groups of people refuse to see it, it is there waiting to bind itself to someone in this life. Love knows no orientation.

8:54AM PST on Dec 31, 2011

The Republicans seem to be pushing more and more toward so called small government that would allow each state to have separate laws. The US was founded as UNITED, not each state setting up separate laws. I don't understand why DOMA was a federal law, but now the Republicans want to make the choice by state! Seems to me just another ploy to delay or stop progress on equal rights for all! OBAMA 2012! It may be our only way to get DOMA repealed!

4:44AM PDT on Jun 15, 2011

Equal Rights Amendments to all reguardless of race, SEX, or religion. Were all created equal. DOMA is just a made up excuse to delay things.

3:27AM PDT on Jun 15, 2011

DOMA should never have been brought in and the quicker it is abolished the better. It's shameful to treat same sex couples differently when they have been together for so many years. Shame on anyone who hides behind such reprehensible legislation as an excuse for treating a same sex couple differently.

2:54PM PDT on Jun 14, 2011

This is rediculous; allowing it to be a "choice" of the state. That will only allow the states to continue to exclude the spouse of a GLBT.

DOMA is stupid. Already we have a high divorce
rate. All should be treated equally and have the same rights. Why does marriage need a defense? Either you are a committed partner or not. In the latter event it ends in divorce or death (sometimes by murder.) The only ones affected by marriage between GLBT couples that I can see would be health insurance or automobile insurance companies that give a reduction in cost to families.

A GLBT marriage doesn't affect anyone elses marriage. Get over it.

2:02PM PDT on Jun 14, 2011

Things will get messy before they get better, but we ARE heading in the right direction. As soon as the military has completed the DADT repealed training, then DOMA will bite the dust. Won't be easy or pretty, but ultimately (and probably very slowly) equality will win.

6:32AM PDT on Jun 14, 2011

Hope conflicts between federal agencies result in equal rights for all, repeal DOMA

5:26AM PDT on Jun 14, 2011

Yeah, but if married gays get the same rights as straights how will they remember that god hates them?? It's not like they get to hear it every day from those lovely god-fearing folk!

4:27AM PDT on Jun 14, 2011

Repeal DOMA NOW!!!

2:32AM PDT on Jun 14, 2011


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