Gay Couples Closer to Receiving Medicaid Spousal Protections
By Tara Siegel Bernard
Same-sex couples are one step closer to receiving protections that heterosexual married couples get when they receive long-term care through Medicaid — that is, the healthy partner will be able to keep some of the ailing partner’s money and remain in their home.
At least, that’s the goal. Right now, only opposite-sex married couples receive those rights because the federal government doesn’t recognize same-sex marriage.
To qualify for long-term care through Medicaid, individuals generally have to spend their money until it’s practically depleted. But married couples can keep more money so that healthy spouses don’t have to impoverish themselves to qualify the sick spouse for care. Nor do they have to worry about giving up their home to raise money to pay back Medicaid for its services after their spouse dies. They can stay put for the rest of their lives.
As a work-around, the Obama administration is close to notifying the state-run Medicaid programs about how they can replicate these protections for same-sex domestic partners, according to the Centers for Medicare and Medicaid Services. But it remains to be seen how the protections will be extended so that they don’t interfere with the Defense of Marriage Act, the federal law known as DOMA, which defines marriages as a legal union between a man and a woman.
“We are working on new guidance in this area, which we expect to issue very soon,” said Mary Kahn, a spokeswoman for the centers. The guidance, which will be issued to the states, will point out what “freedom and flexibilities exist in current law to create more equal treatment for same-sex partners.”
Yet while the federal government is informing the states that they have the legal authority to extend these protections, gay advocates say it may ultimately be up to the states to adopt them.
“We are talking about couples who have spent their entire lives together who have to choose between long-term care for a sick partner and everything they have,” said Michael Adams, executive director of Sage, an advocacy organization for elderly people in the gay community. He added that his group would be lobbying the states to adopt the new policy. “This is a matter of basic human decency. We now have the opportunity to see those protections extended in every state of this country.”
In some cases, not being married can actually work to a gay couple’s advantage: healthy partners who have always held most of the couple’s assets in their name can keep everything — after all, they’re viewed as legal strangers in the eyes of the law.
But more often, experts say, the lack of spousal protections hurts gay couples, especially lower-income people where the healthy partner is at risk of being forced out of their home. If the home is in the sick partner’s name, for instance, the healthy partner risks losing the property right away or when the partner dies, according to a briefing paper on the topic by Sage. Even if the home is jointly owned, the healthy partner is still at risk: Medicaid will probably place a lien on the property, which is problematic if the partner receiving long-term care dies or if the healthy partner wants to move.
In addition to the home, heterosexual married spouses can keep household goods, a car and burial funds until his or her own death. “In contrast, a same-sex health partner risks losing any or all of these assets unless the assets have been in the sole name of the healthy partner for at least five years,” the Sage paper said.
They are also subject to higher thresholds for other assets. Though Medicaid qualification rules vary across the states, the heterosexual healthy spouse is generally entitled to keep the greater of $21,192 or half of their money up to a maximum of $109,560 (though some states allow the healthy spouse to keep that entire amount). But an ailing gay person must apply as a single individual and is generally entitled to keep only $2,000. And his or her partner isn’t entitled to any of the ailing partner’s other assets.
And it’s not as if the sick partner can simply shift the assets to the healthy partner — if a transfer is made within five years of applying for Medicaid, it could disqualify the ailing partner for a certain period of time based on the value of the assets transferred.
The government’s effort to equalize the playing field sprang from a 2010 presidential memorandum on hospital visitation, which directed the Department of Health and Human Services to address “the rights of patients to designate visitors, regardless of sexual orientation and gender identity.” In addition, the memo directed the department to explore additional steps it could take to improve the lives of lesbian, gay, bisexual and transgender people.
A summary of those efforts, released last Friday, is on the department’s Web site. A spokesman for Medicare said the department was close to releasing updated guidance that would address both the new hospital visitation rules and hospitals’ compliance with existing regulations on advance directives. Those directives allow patients to designate who they want to make medical decisions for them when they are unable.
Do you think the state-run Medicaid programs should be required to extend these spousal protections to same-sex partners?