In yet another instance of the Obama Administration reaching as far as it legally can to protect LGBT people, the Centers for Medicare and Medicaid Services this month issued a letter to state Medicaid administrators explaining how they can, if they so choose, protect same-sex spouses and domestic partners in much the same way that heterosexual spouses are protected.
Specifically, the letter addresses three Medicaid policies that relate to how a nursing home resident “spends down” their assets so that they become eligible for Medicaid. Many years ago, federal changes were enacted that ensured that “community-dwelling” spouses weren’t thrown from their houses or deprived of all their assets when their nursing home resident partner became eligible for Medicaid. Because of the Defense of Marriage Act (DOMA), these provisions can not be extended to same-sex spouses…except if states follow the guidance in this new letter.
The letter, “Re: Same Sex Partners and Medicaid Liens, Transfer of Assets, and Estate Recovery,” dated June 10, 2011, explains where and how the Obama Administration believes states have room to craft policies, criteria, or “presumptions” that would effectively protect the shared homes and some of the assets of same-sex couples. The letter addresses three areas: 1) liens imposed upon property owned by Medicaid beneficiaries when they become eligible for Medicaid and are not expected to improve enough to return home; 2) transfers of assets between spouses or domestic partners prior to when one partner goes into a nursing home; and 3) “estate recovery,” or what the state can do to “get paid back” for Medicaid benefits after a beneficiary has died. The letter explains fairly explicitly exactly what states would need to do to protect same-sex spouses and domestic partners in each of these cases.
The practical implication of this letter is that LGBT advocates have been handled a tool. The Obama Administration has made it clear that as long as DOMA is the law of the land, it cannot protect same-sex spouses, but it believes states can. That means all eyes must now turn to state legislatures and state Medicaid agencies. Apparently which body – legislative or executive or both – needs to make the change varies by state. The Technical Director for the Centers for Medicare & Medicaid Services (CMS), Nancy Dieter, told GrayPrideParade:
“The State process for development of Medicaid policy that will be submitted to CMS as an amendment to the Medicaid State plan will likely vary depending on the nature of the proposed change and whether it is necessitated by new or revised State law, regulation, or policy. Each of these sources of change may involve different State officials. However the State determines that a change to its State plan is appropriate, it is usually the State Medicaid agency that submits the proposed amendment to CMS, and serves as the point of contact if CMS has questions about the amendment.”
A copy of the directive is available at http://www.cms.gov/smdl/downloads/SMD11-006.pdf