The federal government has announced that it will permit states to extend Medicaid’s spousal long-term care protections to same-sex domestic partners.
The Department of Health and Human Services website notes:
“HHS will continue to evaluate ways its programs can ensure equal treatment of LGBT families. For example, HHS will advise states and tribes that federal law allows them to treat LGBT couples similarly to non-LGBT couples with respect to human services benefit programs such as Temporary Assistance for Needy Families and child care. The Centers for Medicare & Medicaid Services [CMS] will also notify states of their ability to provide same-sex domestic partners of long-term care Medicaid beneficiaries the same treatment as opposite-sex spouses in the contexts of estate recovery, imposition of liens, and transfer of assets. This includes not seizing or imposing a lien on the home of a deceased beneficiary if the same-sex domestic partner still resides in the home. It also includes allowing Medicaid beneficiaries needing long-term care to transfer the title of a home to a same-sex domestic partner, allowing the partner to remain in the home." http://www.hhs.gov/secretary/about/lgbthealth.html. ”
On June 10th CMS issued a letter to State Medicaid Agencies which clarifies that states can extend these protections when the same-sex spouse or domestic partner of the Medicaid enrollee continues to reside in their home. The letter also outlines how states can apply other protections to same-sex spouses or domestic partners, for example, by allowing individuals needing institutional care to transfer ownership of their homes without financial penalties. View the letter at http://www.cms.gov/SMDL/SMD/list.asp.
The new HHS policy permits states to extend these protections to same-sex domestic partners, but it does not require states to do so. It is unclear whether any state will decide to expand Medicaid spousal protections in this manner. Of course in many cases it would be advantageous for same-sex couples to be treated as not-married to avoid Medicaid’s provisions for deeming of resources.