August 29, 2013 | by Chris Johnson
Medicare lays out post-DOMA coverage policy for gay couples
Centers for Medicare & Medicaid Services, gay news, Washington Blade

The Centers for Medicare & Medicaid has issued new post-DOMA guidance (Image public domain).

Gay married couples are now eligible for nursing home care through Medicare-funded private insurance in the aftermath of the Supreme Court’s decision against the Defense of Marriage Act, according to guidance from the Centers for Medicare & Medicaid obtained Thursday by the Washington Blade.

In the guidance dated Aug. 29, Danielle Moon, director of the Medicare Drug & Health Plan Contract Administration Group, explains the new post-DOMA policy to Medicare Advantage organizations, or private companies that contract with Medicare to provide coverage.

Moon says the ruling against Section 3 of DOMA requires these companies to cover services offered in a skilled nursing facility, or a nursing home, for a gay married couple to the same extent they would provide them to an opposite-sex couple.

“MA organizations therefore are required, effective immediately, to cover services in a SNF in which a validly married same sex spouse resides to the extent that they would be required to cover the services if an opposite sex spouse resided in the SNF,” Moon says.

Under current law, individuals enrolled in a Medicare Advantage plan are entitled to care in certain nursing homes where their spouse resides. But under DOMA, seniors with Medicare Advantage previously may have had to choose between receiving coverage in a nursing home away from their same-sex spouse or disenrolling from their plan to be with their loved one. The latter option would mean paying more out of pocket for care.

The guidance spells out in the wake the court decision against DOMA, Medicare-advantage programs must apply the definition of spouse to married gay couples to provide nursing home coverage.

“In light of the Supreme Court’s decision in Windsor, CMS believes it would be impermissible to interpret the term ‘spouse,’ as used in section 1852(l)(4)(A)(iii), to exclude individuals who are in a legally valid same-sex marriage sanctioned by a state, territorial or foreign government,” Moon writes.

In a news statement accompanying the guidance, Secretary of Health & Human Services Kathleen Services says the new policy is the “first of many steps” that would her department would take to comply with the Supreme Court ruling against DOMA.

“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs,” Sebelius said. “Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”

Centers for Medicare & Medicaid Services Administrator Marilyn Tavenner said the new policy will institute greater equality in coverage under private Medicare plans.

“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation,” Tavenner said. “Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”

Moon’s guidance notes that gay married couples are eligible for the benefits even if they apply for them in a non-marriage equality state that doesn’t recognize their union.

“The foregoing analysis applies to individuals of the same sex who are domiciled in a state or territory that recognizes their relationship as a marriage,” the guidance states. “It also applies to individuals of the same sex who were legally married in a state or other jurisdiction without regard to whether they are domiciled in a state or territory that recognizes their relationship as a marriage.”

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

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