Medicaid qualification rules include a series of "spousal impoverishment protections" that aim to prevent a healthy spouse from having to give up a family home or retirement savings, and live in poverty, in order to qualify his/her spouse for Medicaid.
SAGE's Spousal Impoverishment Protections Initiative. In 2011, before nation-wide freedom to marry, SAGE launched a multi-year advocacy initiative to extend spousal impoverishment protections under Medicaid to same-sex couples in all 50 states. While the Supreme Court’s Obergefell decision largely obviates the need for these other protections, many LGBT older adults remain unmarried to their partners, and as a result, these protections remain critical for many LGBT older adults. Our initiative worked with advocates at the state level to advocate for these protections in their home states.Learn about our successes around the country and how to advocate for these protections in your state. ▶
As the nation's primary health insurance program for low-income individuals, Medicaid serves as the single largest payer of long-term care in the United States, which is often necessary for older adults and people with disabilities who rely on institutional or in-home health services. Medicaid's long-term care program has become an important safety net for the 4 percent of older adults who live in institutional settings such as nursing homes, and the 65-70 percent of elders who will utilize some form of long-term care or community-based services in their later years.
Despite the many older people in this country who rely on long-term services, this type of intensive prolonged care is costly to provide and there are few resources to help pay for these services. Annual costs for care in a nursing home or other long-term care facility average more than $68,000, while in-home services cost an average of $18,000 per year.
Because few Americans have private insurance or long-term care insurance that will fully cover these costs, Medicaid serves as a critical resource for people unable to pay the costs of long-term care. Medicaid assistance, however, is only available to people who are very low-income, or who have depleted most of their savings to pay for care out of their own pockets.
Lesbian, gay, bisexual and transgender (LGBT) older adults are especially vulnerable to poverty, have fewer sources of support and rely heavily on Medicaid and long-term care. Same-sex couples face higher poverty rates than their heterosexual peers; 9.1% and 4.9% among elder lesbian and gay couples, respectively, in contrast to 4.6% among elder heterosexual couples. Moreover, 80% of long-term care in the U.S. is provided by biological family members, yet LGBT elders are twice as likely to be single and three to four times more likely to be without children than their heterosexual counterparts.
To alleviate some of this economic hardship, in 1988 Congress extended "spousal impoverishment" protections to married heterosexual couples. These regulations protect a spouse who needs to qualify his/her spouse for long-term care under Medicaid from exhausting their joint income, losing a shared home and ending up in poverty.
Unfortunately, these spousal impoverishment protections do not apply to same-sex couples in most states, which can leave a same-sex partner without a home and at risk of poverty. Same-sex older couples face profound financial disadvantages under the current Medicaid system, since in most states they are not entitled to protect any of their partners' assets or income, and a non-institutionalized partner might still be forced out of his/her home even if it is jointly owned.
IN JUNE 2011, BEFORE NATION-WIDE FREEDOM TO MARRY, THE CENTERS FOR MEDICARE AND MEDICAID SERVICES NOTIFIED STATES THAT THEY ARE EMPOWERED TO TREAT SAME-SEX COUPLES THE SAME AS MARRIED HETEROSEXUAL COUPLES WHEN IT COMES TO PROTECTION FROM "SPOUSAL IMPOVERISHMENT" UNDER MEDICAID. While the Supreme Court’s Obergefell decision largely obviates the need for these other protections, many LGBT older adults may remain unmarried to their partners. This guidance from CMS specifically referenced the ability to ensure that a same-sex partner can remain in a shared home without a Medicaid lien being applied, and the flexibility to protect same-sex partners under estate recovery and transfer of asset rules.
The federal government notified—not required—states to adopt these protections. While the CMS guidance ensured that states understood their options and abilities to extend these protections related to lien imposition, lien and estate recovery, and transfer penalties, it did not mandate state actions nor specify how individual states could take steps to enact them.
Understanding an individual state's Medicaid framework, legal context and history with LGBT rights is essential to effectively moving this advocacy. Medicaid qualification rules vary across states, as do the related laws, regulations and sub-regulatory guidance of each state.
To learn more about SAGE's Spousal Impoverishment Protections Initiative, please contact Serena Worthington, Director of National Field Initiatives, 773-508-1111 or at firstname.lastname@example.org.
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