June 27, 2012
Same-Sex Couples & Medicaid Long-Term Care
June 27, 2012 Webinar

Welcome — Megan Hey, Alston & Bird LLP

Introduction — Jennifer Pizer, the Williams Institute at UCLA

SAGE ‘s Long-Term Care Initiative — Michael Adams, SAGE

How Impoverishment Happens— Alice Herman

What CMS Proposes— Christy Mallory, the Williams Institute

Determining Eligibility — Jenny Pizer

Proceeding In A State — Sherrill Wayland, SAGE St. Louis, MO

Q&A
The Federal Side of Medicaid
Spousal Impoverishment Protections &
CMS Policy Changes
1.
Eligibility determinations and available
resources: CMS letter does not change
this!!
2.
Protection from lien imposition: CMS
change
3.
Estate recovery: CMS change
4.
Home & asset transfer protections: CMS
change
The CMS Letter is available at:
http://downloads.cms.gov/cmsgov/archived
-downloads/SMDL/downloads/SMD11006.pdf
Eligibility and Protected Resources
Income of
LTC recipient
only
Combined
“countable” assets –
protected resource
amount
Home NEVER
counted
Assets of LTC
recipient only
Income of
LTC recipient
only
Home, once there is
no intent to return
home
Home equity above
cap, regardless of
intent
Portion of
LTC
recipient’s
income set
aside for
community
partner
Protected
resource
amount
belongs to
community
partner
All income
but very
minimal
amount must
go towards
LTC
All assets
above
eligibility
threshold must
go towards
LTC
Eligibility and Protected Resources
Income of
LTC recipient
only
Combined
“countable” assets –
protected resource
amount
Home NEVER
counted
Assets of LTC
recipient only
Income of
LTC recipient
only
Home, once there is
no intent to return
home
Home equity above
cap, regardless of
intent
Portion of
LTC
recipient’s
income set
aside for
community
partner
Protected
resource
amount
belongs to
community
partner
All income
but very
minimal
amount must
go towards
LTC
All assets
above
eligibility
threshold must
go towards
LTC
When a lien can be imposed
General rule
Exceptions
States MAY place
lien on home of
LTC recipient,
whether or not
there is subjective
intent to return
home
States MAY NOT
place lien on home
of LTC recipient, if
a spouse or certain
other dependent
children or siblings
reside in the home
Rationale for extending
to SS couples
Federal policy sets a
floor for lien
exceptions; states may
choose not to put lien
on home if occupied by
person in another
defined group
This defined group
could include a SS
partner of the LTC
recipient
When estate recovery occurs
General rule
Exceptions
States MUST recoup
Medicaid
expenditures from
the estate of LTC
recipient after death
States MAY NOT
recover from the
estate during the
life of a spouse or
certain other
dependent children
or siblings; OR if
recovery would
create an “undue
hardship” for heirs
Rationale for extending
to SS couples
States may choose to
consider a SS partner
an “heir”…
and have considerable
flexibility in
determining what
“undue hardship”
means
When an LTC recipient may be
penalized for transferring property
General rule
Exceptions
States MUST
penalize LTC
recipients if they
transfer property
for less than fair
market value
States MAY NOT
penalize LTC
recipients if they
transfer property
for less than FMV to
a spouse; OR if
penalty would
create an “undue
hardship”
Rationale for extending
to SS couples
States have
considerable flexibility
in determining what is
an “undue hardship”
Could determine that
imposing penalty
because of transfer to a
SS partner constitutes
an “undue hardship”
Where are the Medicaid provisions located
in state laws/policies?
How to determine eligibility?

Is there a formal legal status for same-sex
couples in the state?



Eligibility criteria needed if not
Also needed for couples not in that legal status
Is there a state “defense of marriage act”
(DOMA)?


How broad?
Statutory or constitutional?
Is there a formal legal status for same-sex
couples in the state?
www.lgbtmap.org/equality-maps
If no legal status offered or recognized…
Option 1: Mutually Dependent Partnership
Determines eligibility for protection using
common criteria that confirm partners’
commitment to each other and financial as
well as emotional interdependence
* This framework should be incorporated into the
statute/regulation/guidance document that is being changed to
extend impoverishment protection to same-sex partners
If no legal status offered or recognized…
Option 2: Care or Support Provider
Determines eligibility based on a person
having lived with and cared for or supported
the LTC recipient for a specified time and
having no other permanent residence, not
based on being a committed couple.
•This framework should be incorporated into the
statute/regulation/guidance document that is being changed to
extend impoverishment protection to same-sex partners
Is there a state DOMA?
www.lgbtmap.org/equality-maps
Is there is a ban on recognizing same-sex
couples? If so, how broad is it?
Find your state in the Tables in Section VI of the Overview Report:

No ban and a formal status: CT, DC, IA, MD, MA, NH, NJ,
NY, RI, VT, WA [NB: states in bold allow same-sex couples to marry]

No ban and no formal status: NM

A ban on marriage but a status: CA, CO, DE, HI, IL, ME,
NV, OR

A ban on marriage and no status: AZ, IN, MN, MS, MO,
PA, TN, WV, WY
Broader bans on recognizing same-sex
relationships. What remains possible?

A ban on marriage and any “identical” or “similar” status:
AL, AR, FL, GA, KT, LA, MI, NE, ND, OH, TX, UT, WI

An even broader ban: ID, KS, NC, OK, SC, SD, VA (AK,
MT by statute)
If your state has a ban:

Consider its text and whether it is constitutional or statutory

Consider any case law in state, and case law of other states
The State Side of Medicaid, Missouri
Medicaid in Missouri:
MO Health Net
Same-sex couples per
1,000 households,
Census 2010
Where are the Medicaid provisions located
in Missouri state laws/policies?
Williams Institute Medicaid Long-Term Care
Impoverishment Reports

Extending Medicaid Long-Term Care Impoverishment Protections to SameSex Couples

National Overview Report

State Reports:
● Colorado
● Georgia
● Illinois
● Missouri
● Pennsylvania
● Utah
● Virginia

Now available on the Williams Institute homepage:
http://williamsinstitute.law.ucla.edu/
and permanently posted at: http://williamsinstitute.law.ucla.edu/research/marriageand-couples-rights/medicaid-reports-june-2012/
© 2012 the Williams Institute, UCLA School of Law