The U.S. Supreme Court's decision last week to legalize same-sex marriage across the country will have mixed effects for same-sex couples when it comes to Medicaid.
In Obergefell v. Hodges, the court ruled 5-4 that same-sex marriage is a fundamental right guaranteed by the 14th Amendment. Prior to the ruling, same-sex marriage only was allowed in 37 states and the District of Columbia.
Experts say the ruling will affect coverage rules for both Medicaid medical and long-term-care benefits.
Medicaid agencies in states that did not previously recognize same-sex marriage still have to develop new policies, and there may be lingering resistance from elected officials in some states. Some state Medicaid officials indicated that their agencies were still examining what changes they need to make. But the legal basis for discrimination in Medicaid coverage was ended with the Obergefell decision.
It's expected that same-sex couples in all states now will have their entire household income taken into account when one or both people in the marriage applies for Medicaid. In states that did not previously recognize such marriages, “Adding the spouse adds income that might make some or all members of the household over income for Medicaid,” said Cindy Mann, who served until recently as the CMS' Medicaid director and is now a partner at the law firm of Manatt, Phelps & Phillips.
But being married can cut the other way, too, in terms of Medicaid eligibility, because income eligibility also is based on the number of family members in the household. “For some families, adding a spouse doesn't add much if any income but adds to the household size,” Mann said. “So it might make a family or household member eligible who wasn't previously eligible.”
Nationally, it's likely the CMS will issue guidance on what changes are needed in light of the court's decision. But that could be a few weeks off, said Matt Salo, executive director of the National Association of Medicaid Directors. “Even something as low-key as an (frequently asked questions statement) takes time to produce, and it really hasn't been that long,” Salo said.
Many states where same-sex marriage previously was allowed already are looking at the incomes of both spouses when they determine eligibility, a Modern Healthcare survey of the states found. Officials in some states said that change did not pose any significant administrative difficulties. “It wasn't anything substantially difficult,” said Jennie Melendez, a spokeswoman for the Oklahoma Health Care Authority. It only required a simple modification to her agency's IT system.
But officials in other states say they are unsure what the Supreme Court decision means for their state in terms of Medicaid eligibility. “This (ruling) will require us to make changes,” said Kelly Gunderson, a spokeswoman for TennCare, Tennessee's Medicaid program. “We are currently going through our policies and systems to determine what those changes will be.”
In Georgia, the state Department of Community Health is in the early stages of assessing what changes will have to be made in Medicaid and other programs, spokesman Jeremy Arieh said. “We will communicate these changes and issue guidance to those affected as soon as we are able to verify the content among ourselves, with the attorney general's office and with our benefit vendors.”
The ruling also gives same-sex couples in all states access to federal spousal impoverishment protections when one spouse receives Medicaid coverage for long-term care, legal experts say. If one spouse goes into a nursing home or receives other long-term-care services paid for by Medicaid, the other spouse won't have to give up the family home or all of the couple's retirement savings or income. Previously, only heterosexual married couples received these protections in states that did not recognize same-sex marriage.
“Up until the recent decision, spousal impoverishment protections have been unavailable to same-sex couples in states that did not recognize marriage for same-sex couples, even if those couples had been married in another state,” said Eric Carlson, directing attorney of Justice in Aging, an advocacy group.
A related protection is that same-sex spouses in all states now will be shielded from Medicaid estate recovery. The federal government requires states to recoup funds from the estates of deceased Medicaid beneficiaries for any long-term-care costs that these people incurred from age 55 until they become eligible for Medicare at age 65. But now there can be no claim on the estate as long as there is a surviving spouse, Carlson said.
