Advocates’ Map to LGBT Medicaid Spousal Impoverishment Protections

If you are an advocate who wants to protect same-sex partners from being ousted from their homes and losing income they need to live on when their partner needs Medicaid help to pay for nursing home care, the Williams Institute has issued a must-have guide:  “Extending Medicaid Long-Term Care Impoverishment Protections to Same-Sex Couples,” available at http://williamsinstitute.law.ucla.edu/research/marriage-and-couples-rights/medicaid-reports-june-2012/

The report’s executive summary explains, “When recipients of Medicaid receive long-term care (LTC) benefits, Medicaid can place a lien against their homes or seek recovery from their estates after death in order to recoup the expenses of the care.  Medicaid can also penalize recipients of LTC for giving their home away for less than full value by not covering costs of their care for a certain period of time.  State and federal law provides exceptions to these requirements when the LTC recipient has a different-sex spouse.  These exceptions prevent surviving spouses from being impoverished by losing their homes.  Until recently, these impoverishment protections could not include same-sex spouses or partners.

“In the summer of 2011, the Center[s] for Medicare & Medicaid Services informed states that federal law allows same-sex partners of recipients to be included in these impoverishment protections (‘the CMS Letter’).  These protections can significantly reduce the likelihood that a same-sex partner must become impoverished in order for a sick or disabled partner to receive LTC through Medicaid.  However, the CMS Letter did not provide these impoverishment protections to same-sex couples directly.  States must adopt affirmative policy measures to provide them.  This memo explains how states can do so.”

The 27-page report goes on to explain that in order to protect same-sex spouses, states might have to amend statutes, regulations, or administrative guidance.  It also lays out two ways that same-sex spouses can be protected, even in states that have banned same-sex marriage and/or anything that provides similar benefits.  One way is by protecting “mutually dependent partners,” which would be possible only in certain states (the report specifies which ones).  The second method could be used even in states with the most restrictive laws barring recognition of same-sex couples, and is called the “care or support provider” model. 

The Williams Institute has also prepared separate memos specific to the following states:  Colorado, Georgia, Illinois, Missouri, Pennsylvania, Utah, and Virginia.  They are available at the website linked to above.

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