Law Office of John S. Palmer Attorney at Law

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Hardship Medicaid Waivers for Same-Sex Couples

Posted Sunday, October 7, 2012 by John S. Palmer

A proposal to permit granting hardship waivers to Medicaid applicants, who are ineligible for benefits due to a transfer of assets to a registered domestic partner or same-sex spouse, is currently being considered by the Washington Department of Social and Health Services (DSHS).

The Federal Defense of Marriage Act (DOMA) excludes same-sex couples from the definition of “marriage” as that term is used in any federal law or regulation, thereby rendering same-sex couples who are legally married pursuant to state law ineligible for a wide variety of federal benefits, including benefits available to spouses of Medicaid recipients.

The Medicaid program provides joint federal and state funding of medical care for individuals who cannot afford to pay their own medical costs. In return for accepting federal funds, the State must comply with certain federal requirements for making eligibility determinations.

Generally speaking, federal law requires that an individual must spend most of his or her life savings before qualifying for Medicaid benefits. However, consistent with federal law, Washington does not penalize the transfer of a home or other assets by a Medicaid applicant to his or her spouse; and permits the spouse to keep a home and up to $113,640 in savings, and use excess savings to purchase an annuity that creates a stream of income for the benefit of the spouse.

DOMA prevents extending these benefits to legally married same-sex couples and registered domestic partners. However, the rule change under consideration would amend WAC 388-513-1367 to permit DSHS to grant a hardship waiver to a Medicaid applicant who is ineligible for benefits because he or she transferred assets to a registered domestic partner or same-sex spouse, provided that the transfer would not have rendered the applicant ineligible for Medicaid if it had been made between an opposite-sex married couple.

A hearing on the proposed rule change was held on September 25; at the moment it is unclear when further action will be taken, or when the change would take effect if adopted.

Some assets are exempt from the Medicaid spenddown requirement, most notably a home; but DSHS will assert a claim against these assets after the owner’s death, seeking reimbursement for benefits paid. A separate regulation already permits DSHS to delay the filing of a claim against a Medicaid recipient’s estate if the decedent is survived by a registered domestic partner, thereby permitting the surviving partner to use assets inherited from the decedent for his or her benefit.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056