The Obama administration on Friday
extended Medicaid's financial protections to gay and lesbian couples.
new regulations were laid out in a letter to state Medicaid
agencies written by The Centers for Medicare & Medicaid Services
(CMS), an agency under the direction of the department of Health and
Human Services (HHS).
Currently, Medicaid policies protect
the financial assets of married straight couples when a spouse enters
a nursing home or care facility.
“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 HHS 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.”
The letter, in effect, encourages
states to recognize the spouses of gay men and lesbians, even though
federal agencies are banned from recognizing such unions under the
Defense of Marriage Act (DOMA).
DOMA defines marriage for federal
agencies as a heterosexual union. Medicaid polices refer to DOMA in
defining who qualifies as a spouse.
The law gives states the flexibility
not to pursue liens when the gay spouse of a Medicaid beneficiary
continues to reside in the home the couple once shared, the CMS
“States choosing not to pursue liens
when the same-sex spouse or domestic partner beneficiary continues to
lawfully reside in the home would exercise their existing discretion
in determining the scope or circumstances, either prior to, or when
pursuing liens,” the agency wrote.
States are also encouraged to recognize
gay couples in other circumstances, including estate recovery and
transfers of assets.
“The exemptions for transferring
assets to a spouse cannot be directly applied to same-sex spouses or
partners as a result of DOMA,” the agency concedes in its guidance.
“However … a transfer of assets penalty period will not be
applied if the State determines, under procedures established by the
State, that denial of eligibility would create an undue hardship.”
“Because of the flexibility afforded
to States in determining undue hardship, we believe that States may
adopt criteria, or even presumptions, that recognize that imposing
transfer of assets penalties on the basis of ownership interests in a
shared home to a same-sex spouse or domestic partner would constitute
an undue hardship.”
Gay rights groups praised the new
guidance but added that DOMA remains the law.