In a webinar yesterday covering the broken and pitted ground of same-sex benefits for seniors in Medicare and Medicaid, senior advocates said the legitimacy of a spouse can be an extremely important factor in eligibility cases.
Federal guidance issued in June helped clarify benefits, but still they can vary from state to state. Even in states like California that consider same-sex marriage legally binding, the effects of the national patchwork of regulations can be felt by lesbian, gay, bisexual and transgender (LGBT) beneficiaries of Medi-Cal (California’s Medicaid program) and Medicare, legal and policy experts said.
“Older LGBT adults already face numerous barriers to care, such as social isolation,” said Aaron Tax, director of government relations for SAGE — Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders — a national advocacy group based in New York.
“But you have to pile onto that that many are going back into the closet to keep jobs, many have lower incomes than their heterosexual counterparts and many have a lack of access to culturally competent health care,” Tax said.
Georgia Burke, directing attorney at the Oakland office of the National Senior Citizens Law Center, said the June 20 guidance from the Department of Justice made it clear that same-sex marriages should be treated the same as other marriages “to the greatest extent possible under the law,” Burke said. “They did not say same-sex marriage was legal.”
There are two separate approaches used by government when defining marriage for federal programs, Burke said:The place of celebration rule, in which the rules of the state where a same-sex marriage occurred would follow a couple to another state, even if that state didn’t recognize same-sex marriages; and The place of domicile (or state of residence) rule, in which the laws of the state where people reside would determine how some federal benefits are handled.
The problem, Burke said, is that some benefits such as Medicare Part B are considered using the place of celebration rule, but others such as Medicare Part A fall under the place of domicile rule.
“CMS has made it clear they’d like to use place of celebration universally,” Burke said, “but for now, we’re going to be living with a patchwork for a while. There is not one general and consistent rule.”
“Medicare Part A might be the most important thing we talk about today, it’s the hospital side of health care, including hospice and skilled nursing facilities,” Burke said. “The cost is high if you’re not qualified, or if your spouse isn’t qualified.”
That means, if you live in a state where same-sex marriage is not recognized, you can’t marry out-of-state and still keep the Medicare Part A marriage benefit.
In states that do recognize same-sex marriage, there are some instances where the patchwork of regulation can mean LGBT beneficiaries in non-recognition states actually have a better deal than those in recognition states, Burke said.
“Like the issue of personal care, attendant care,” she said. “It is a Medicaid benefit, and many states will pay a relative but not a spouse. Because they’re expected to provide services to each other for free. So in this case the non-recognition actually could be helpful for couples.”
Several bills have been introduced in Congress to create the same health care benefits in all states for same-sex couples, Burke said.