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States May Now Extend Medicaid's Spousal Protections to Same-Sex Partners

Last Updated: 4/9/11

The U.S. Department of Health and Human Services (HHS) has announced it will now permit states to extend Medicaid long-term care protections long available to spouses of nursing home residents to same-sex domestic partners as well.

While nursing home residents must spend down to $2,000 (or slightly more in some states) of countable assets before Medicaid will pick up their cost of care, Medicaid law has provisions to avoid forcing the healthy (or "community") spouse to give up the family home and retirement savings, and live in poverty, in order for the nursing home spouse to receive Medicaid coverage.

The community spouse may keep up to approximately $110,000. If she has less than this amount, the nursing home spouse may transfer his assets to the spouse to make up the difference. Further, if the community spouse has low income, she may keep some or all of the nursing home spouses income as well as her own. These protections are not available to non-spouse partners of nursing home residents.

The new HHS policy, which the Obama administration will soon be notifying state-run Medicaid programs about, will permit states to extend these protections to same-sex domestic partners as well as spouses of nursing home residents, but it will not require states to do so.

HHS 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, according to HHS, not seizing or imposing a lien on the home of a deceased Medicaid beneficiary if the same-sex domestic partner still resides in the home, and 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.

It is important to be aware that the asset and income protections primarily help lower-income seniors. Although under the Medicaid rules non-married seniors may not freely transfer assets to each other, they are not subject to the asset limits. The healthy partner can keep all of his assets and the nursing home partner need only spend down his own assets. If the healthy partner in a same-sex couple is well off or has all of the couple's assets in his name, the introduction of spousal protections will mean he may keep less of his assets if his partner is to qualify for Medicaid.

For a press release from SAGE (Services & Advocacy for Gay, Lesbian, Bisexual and Transgender Elders) on the new HHS policy, click here.

For a New York Times blog post about the policy change, click here.

For a SAGE Brief on "LGBT Older Adults and Long-Term Care Under Medicaid," click here.

For more on Medicaid's protections for the healthy spouse, click here.

To discuss elder law issues with an attorney, please email the Elder Law Center or call 630-844-0065. The Elder Law Center is located in Aurora, IL, Kane County, in the Chicago Western Suburbs.