The United States Department of Health and Human Services (HHS) has announced that it will now allow states to extend Medicaid long-term care protections to same sex domestic partners that have historically only been provided to heterosexual spouses of nursing home residents. The government’s effort derived from a 2010 presidential memorandum, which directed HSS to explore additional steps it could take to improve the lives of lesbian, gay, bisexual and transgender people.
Nursing home residents may only have $2,000 of countable assets to qualify for Medicaid, which covers their nursing home costs. However, a community spouse of a nursing home resident may keep up to $109,560 plus one residential home and a few other assets. Previously, a same sex spouse has not been eligible for the community spouse protections because the federal government did not recognize same sex marriage. This lack of spousal protections has kept same sex couples, especially lower income same sex couples, from retaining some of the ailing partner’s finances and remaining in their home.
HHS is now informing the states that they have the legal authority to extend these protections, but the government will not require states to do so. However, in some cases, not being recognized as a married couple can be an advantage, as the healthy spouse that has held assets in their individual name can keep everything. As such, it is advisable to speak with an elder law attorney regarding ever-changing rules of Medicaid.
Todd C. Ratner, Esq.
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