June 10, 2011 | by Chris Johnson
EXCLUSIVE: Obama extends protections to gay couples under Medicaid

Secretary of Health & Human Services Kathleen Sebelius (Blade file photo by Michael Key)

The Obama administration is set on Friday to issue policy guidance to states expanding their ability to offer same-sex couples the same protections afforded to straight couples when they receive long-term care under Medicaid, the Washington Blade has learned exclusively.

Under the new guidance, dated June 10, states have the option to allow healthy partners in a same-sex relationship to keep their homes while their partners are receiving support for long-term care under Medicaid, such as care in a nursing home.

Medicaid kicks in for a beneficiary to receive care after an individual depletes virtually all of their money. To pay for the beneficiary’s expenses under Medicaid, a state could impose a lein, or take possession, of a beneficiary’s home to pay for Medicaid expenses.

However, federal law prohibits imposing this lein if beneficiaries are married to someone of the opposite-sex who’s still living in their home. The new guidance, signed by Deputy Administrator of the Centers for Medicare & Medicaid Services Cindy Mann, clarifies that states can offer this protection to the healthy partner of a Medicaid recipient in a same-sex relationship.

“A State can have a policy or rule not to pursue liens when the same-sex spouse or domestic partner of the Medicaid beneficiary continues to lawfully reside in the home,” the guidance states.

The Obama administration previously hadn’t articulated whether gay couples could receive these protections under the Defense of Marriage Act, which prohibits federal recognition of same-sex marriage. The guidance doesn’t mandate that same-sex couples receive this protection, but allows states to “incorporate their criteria for determining when to impose a lien in the Medicaid State plan.”

The Department of Health & Human Services had been examining ways to offer more protections to same-sex couples under Medicaid as part of the work it has undertaken for LGBT people, but until now hadn’t issued the policy guidance to states.

Secretary of Health & Human Services Kathleen Sebelius said in a statement the new guidance represents a path for low-income same-sex couples to receive care under Medicaid.

“Low-income same-sex couples are too often denied equal treatment and the protections offered to other families in their greatest times of need,” she said. “That is now changing. Today’s guidance represents another important step toward ensuring the rights and dignity of every American are respected by their government.”

Michael Cole-Schwartz, a Human Rights Campaign spokesperson, praised the Obama administration for issuing the guidance, but maintained same-sex couples won’t have equal protection under the law until DOMA is repealed.

“No one should have to choose between keeping their home and getting the medical care they need and deserve,” Cole-Schwartz said. “This is an important step to give some couples the security and dignity they deserve when they need it most. However all same-sex couples will remain vulnerable until we end discrimination in marriage and repeal the Defense of Marriage Act.”

In addition to allowing states not to impose liens on the homes of same-sex couples, the guidance also allows individuals in same-sex relationships to sell their home below market value to their partner and still receive Medicaid support.

An individual seeking Medicaid coverage may want to make this transfer to deplete his or her assets more quickly to be eligible for care. Under other circumstances, the state could impose a period of ineligibility on the beneficiary because of this sale, but the guidance says states can ignore this transfer if they believe such ineligibility would institute “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 the transfer of ownership interests in a shared home to a same-sex spouse or domestic partner would constitute undue hardship,” the guidance states.

Furthermore, the guidance says states can opt not to seize the home of Medicaid beneficiaries upon their death if their same-sex partner is still living in the home.

States may seize the property of Medicaid beneficiaries upon their death — if a lien has been imposed on the home or the recipient is age 55 or over and has received nursing services — but not if the recipient’s child or spouse is living in the home. The guidance clarifies that states may also decide not to do so if a same-sex partner is living in the home.

“States have flexibility to design reasonable criteria for determining what constitutes an undue hardship and who may be afforded protection from estate recovery in such instances,” the guidance states. “At the State’s discretion, this may include establishing reasonable protections applicable to the same-sex spouse or domestic partner of a deceased Medicaid recipient.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

17 Comments
  • Katie Murphy - ex catholic family

    Thats great. Another well deserved stake through the heartless catholic church and the “anything but” christians who now vent their hatred on gays, And the repubs whose medical plans for all of us include the rape of the middle classes pocketbooks by the insurance companies where eg UHC the CEO takes home about 30 mil per year.

  • Sorry, but this is not enough. Giving states the option, while so many states right now are under the control of Christian fundamentalists or Teabagger extremists, is just a cop-out on Obama’s part. On the other hand, if there was a MANDATE for the states to accept these terms, it would definitely be a credit to Obama.

    • I can’t vouch for the tea party, but please don’t think that all Christians are the ‘God hates fags’ kind. I am a believer, and guess what? Part of that belief is equality. Equality for everyone. God loves you. Its people that are hateful.

      • I didn’t say “all Christians”, I said Christian Fundamentalists. Sorry, but it’s a fact that most Evangelical and Baptist churches in this country take an extremist homophobe stance (maybe not as extreme as Fred Phelps, but then again no one is that extreme). And let’s not leave out the Mormons, who have poured money into every anti-gay initiative that’s happened on a statewide level.

  • someone is playing safe ..

  • repeal doma so that these medicaid thing will be useful

  • Wow! Great change can be made by nipping at the heels of history. Separate but Equal lives in the hearts of bigots everywhere!!! Don’t they also allow states the options of inter-racial marrige? These progressives may soon legalize (or rather allow states to allow) voting while hispanic. Such progress! We should be happy the moderate Republicans (Obama et al) are keeping the Extreme Republicans at bay. Never mind that 62% of the public is left of Obama on the issues (not the label “liberal” where Obama is the Liberal Devil himself). Which is why issues are important, not labels.

    • Maybe you should work on building allies with people in power so that the change you want to see can be built upon. Stop biting the hand that’s trying to help you. If others wouldn’t suffer too, I’d almost wish a republican presidency on ungrateful douchebags like you. If you think it’s fun seeing what the repugs are doing to women’s rights, I can’t wait to see what they do when they turn their sights on to the gays. Build relationships and allies, that’s how change happens. If you aren’t part of the solution, then shut the hell up.

  • Kind of sucks, Ronbo. I am with you on the sentiment of your post, but you lost a lot of credibility with “62% of the public is left of Obama on the issues.” What are “the issues,” and why do you think there only one set of them? Additionally, what is this 62% number and where did it come from?

    Make less up and your arguments will make themselves stronger.

  • I voted for a pragmatic centrist who I thought could do the job.

    I got THE HISTORIC LGBT RIGHTS PRESIDENT.

    Wow. Thank you, Mr. President.

    Greatest President since Lincoln. Greatest ever? Get back to me around 2016.

    P. S. I see some of the other commenters are what is wrong with the Left. Left baggers, useful idiots, whisperers in darkness. There are real things going on while you savour your fine whine. Thank you for the support.

    • DOMA will never be upturned. It is the will of the majority of us and we will fight to the death to defend it from the likes of you people. I can see now all the loopholes in this proposed rule. Any single person, regardless of gender, can ask a same-sex friend to move in and pretend to be their partner and voila!!! The rules don’t apply to you anymore. Way to go Sebelius. Way to go America.

  • The headline is misleading, as anyone who actually reads the article will discover. It should be “EXCLUSIVE: Obama allows states to extend protections to gay couples under Medicaid (but only if they really want to…)”

  • Always good to see any progress (however small) towards treating GLBT with equal rights, respect and compassion. This might be more symbolic than anything else, but I see a lot of good potentially coming from this. Mainly for couples that have been (for all intents and purposes) married for years but cannot care for each other in the same way that legally married people can.

  • It’s good but it’s just another tiny step to nowhere. What we really need is an inclusive civil rights amendment, socialized medicine and repeal of Bill Clintons DOMA.

    It about all we can expect from Democrats in any election season and a tiny bit more than we can expect of Republicans at any time at any time.

  • Obama is a good guy! Always looking out for us! hahaha I saw this great post on http://guyspy.com! It was a poll on who would you rather sleep with: Obama or Romney! Hahaha You might want to go to GuySpy and cast your vote! hahahah

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