Last Friday Heath and Human Services Secretary Kathleen Sebelius issued new regulations instructing states that they could "offer same-sex couples many of the same financial and asset protections available to opposite-sex couples when a partner is entering a nursing home or care facility." The new rules relate to states' ability to place a lien on the home of a medicaid beneficiary in a nursing facility as a means of "spending down" their assets, or if the person is not expected to be discharged from the facility and return home. Under the federal regs, states may not place a lien on the home of a medicaid beneficiary in a nursing home if their spouse, child under 21, disabled child, or sibling is living in the home.
Under the new regs, a "state can have a policy or rule not to pursue liens when the same-sex spouse or domestic partner of the Medicaid beneficiary continues to lawfully reside in the home." In essence, states are given permission to treat the same-sex partners of the medicaid beneficiary the same as they would a spouse or other family member.
"Low-income same-sex couples are too often denied equal treatment and the protections offered to other families in their greatest times of need," said Health and Human Services Secretary Kathleen Sebelius in a release announcing the rule change. "This is now changing. Today's guidance represents another important step toward ensuring that the rights and dignity of every American are respected by their government."
Of course this is a positive change in the law, though not a bold one. The new regs don't require but merely permit states to interpret the medicaid rules in a way that won't render the same-sex partners of medicaid beneficiaries homeless. Noone will be surprised if many states elect not to adopt this interpretation of family member.
Some commentators have noted that a repeal of DOMA will go a long way toward solving this problem. But I don't think that's quite right. It's worth noting here that the issue is not only one of treating same-sex couples as if they were married, but a larger issue of marital status discrimination. As we get closer and closer to repeal of DOMA and more states allowing same-sex couples to marry we want to avoid a situation where same-sex couples must marry in order to gain the benefits now made available to married different-sex couples. When the day comes that same-sex couples are allowed to marry, my hope is that this rule -- along with others that have been interpreted to include domestic partners -- not be narrowed so that it recognizes only those couples who do marry. My worry here is that winning the right to marry not collapse into a requirement that we marry in order to retain benefits that we now have as domestic partners or other types of kin.
The HHS letter announcing the change is available here.
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