New Medicaid policy is more important than it may seem

by on June 14, 2011  •  In DoMA, Health

The Obama administration issued guidance last Friday delineating how same-sex couples can be financially protected if one becomes Medicaid eligible in the process of securing long-term care for a serious disability (often age-related). As the letter explains, married heterosexual couples have a variety of legal mechanisms that allow the non-disabled spouse to retain some basic assets such as their home. Because of DoMA, same-sex marriages cannot be recognized. Thus no same-sex couples have had access to the same options for preventing spousal impoverishment. 

The new guidance letter on Medicaid rules for same-sex couples suggests a variety of ways that the same kinds of protections can apply to same-sex couples, whether married or not.  This may sound like a mush of bureaucratic legalese, but it is much more than that. Aside from the smart lawyering involved in producing this analysis (kudos to the HHS legal staff), this development has both short and long term importance.

In the here and now, more and more same-sex couples are entering the final third of life, along with every other baby booomer in the U.S.  Medicaid, originally set up as a health insurance system for the poor, including the "medically indigent," now pays more than half the total costs of long-term care in the U.S. Given the crushing expense of nursing homes even for middle-class Americans, Medicaid has been necessary for millions of elders to receive decent care.  For senior same-sex couples, the new Administration position is a huge and immediate change.

But there is another, potential long-term effect of the new guidance as well. It's less obvious but, with a little investment of energy, one that could help end routinely anti-gay policies in social services agencies.  Here's why -

Medicaid is a joint federal-state program, both in funding and administration. Its day-to-day operations are carried out by state agencies – you don't go to the local federal building to apply for Medicaid, you go to the state human services field office.  Among other things, state government agencies determine eligibility. This is why the Administration's policy was announced in the form of a guidance letter to state officials: it provided every state agency with the green light to make eligibility determinations that de facto treat same-sex couples as straight married couples are treated.

In some states, officials wanted to accord these benefits to gay couples, but may have been worried that to do so would expose them to charges that they were violating DoMA. In Massachusetts, for example, HHS may now assert that the new policy moots the state's claim that DoMA forces it to violate its own state law allowing same-sex couples to marry. There will be other states – probably all those that already allow either marriage or a civil union status – that will welcome the new HHS policy as well.

The most important political change could occur in states with the worst anti-gay policies. There the new policy creates a strong basis for demanding equal treatment for same-sex couples.  In other words, those officials cannot hide behind the DoMA argument any longer. 

As the HHS letter states, the federal agency cannot require state agencies to take these steps: the Medicaid statute itself does not provide authority for a mandate. But the letter does explicitly declare that states have the discretion to do so, and it encourages states to exercise that discretion.

With this guidance from the federal level, state advocates can much more powerfully demand the implementation of such policies. State officials may refuse, but their legal justification for a refusal has just gotten immensely weaker.


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