Spousal Protections Under the Medicaid Program To Be Extended To Same-Sex Couples And LGBT Families

Same-sex domestic partners are closer to receiving the spousal protections that opposite-sex married couples get when they receive long-term care through Medicaid — that is, the healthy partner soon may be able to keep some of the ill partner’s money and remain in the same-sex partners’ home.

In New Jersey like most states, nursing-home residents must spend down to $2,000 of countable assets before Medicaid will pay for the cost of care. However, Medicaid law protects the healthy spouse in a heterosexual married couple, who is usually living in the community, from impoverishment when the nursing-home spouse qualifies for Medicaid coverage. At present, these protections are not available to same-sex partners of nursing home residents.

However, the U.S. Department of Health and Human Services (HHS) is now working on new regulations which will inform the states that they have the legal authority to create more equal treatment for same-sex partners. As set forth on the HHS website:

HHS will continue to evaluate ways its programs can ensure equal treatment of lesbian, gay, bi-sexual and transgendered (LGBT) families. For example, HHS will advise states and tribes that federal law allows them to treat LGBT couples similarly to non-LGBT couples with respect to human services benefit programs such as Temporary Assistance for Needy Families and child care. The Centers for Medicare & Medicaid Services will also notify states of their ability to provide same-sex domestic partners of long-term care Medicaid beneficiaries the same treatment as opposite-sex spouses in the contexts of estate recovery, imposition of liens, and transfer of assets. This includes not seizing or imposing a lien on the home of a deceased beneficiary if the same-sex domestic partner still resides in the home. It also includes allowing Medicaid beneficiaries needing long-term care to transfer the title of a home to a same-sex domestic partner, allowing the partner to remain in the home. (emphasis added)

The lack of spousal protections hurts LGBT families, especially lower-income gays where the ill partner is receiving Medicaid benefits and the healthy partner, living in the community, is at risk of being left impoverished and forced out of the partners’ home after paying care costs. LGBT elderly are poorer than heterosexual elderly and four times less likely to have children. As a result, the lack of Medicaid spousal protections is especially difficult. The proposed regulatory change by HHS is a positive step forward to ensuring equality in the allocation of scarce public benefits. If states enact legislation to treat same-sex couples receiving Medicaid the same as opposite-sex couples in the same situation, LGBT elderly will be able to age with dignity, and financial security.