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Medicaid Spousal Impoverishment Protections for Same – Sex Civil Union Partners

When one partner in a long-term relationship needs expensive long term care, often the only way for the couple to pay for it is to look to Medicaid. Historically, there have been no spousal impoverishment protections afforded to partners in same-sex relationships when one partner needs long term care and applies for Medicaid. However, the combination of the new Illinois Civil Union Act and a policy change recently announced by the U.S. Department of Health and Human Services ensure that Medicaid spousal impoverishment protections are afforded to Illinois same-sex civil union partners.
On April 1, 2011, U.S. Department of Health and Human Services Secretary Kathleen Sebelius announced that, effective immediately “[t]he Centers for Medicare & Medicaid Services will notify states of their ability to provide same-sex domestic partners of long-term care Medicaid beneficiaries the same treatment as opposite-sex spouses in the contexts of estate recovery, imposition of liens, and transfer of assets. This includes not seizing or imposing a lien on the home of a deceased beneficiary if the same-sex domestic partner still resides in the home. It also includes allowing Medicaid beneficiaries needing long-term care to transfer the title of a home to a same-sex domestic partner, allowing the partner to remain in the home.” In additional to these protections, the partner in the community is allowed to receive assets, in addition to the home, from the nursing home partner in an amount sufficient to bring the community partner’s assets to the Community Spouse Asset Allowance standard – presently $109,560. The community partner may also be eligible to receive income from the nursing home partner when Medicaid is paying for that partner’s long term care.
The new Civil Union law which became effective on June 1, 2011 provides that a “party to a civil union” is to be included in any definition used in state law where the term “spouse,” “family,” “immediate family,” “dependent,” “next of kin” and other terms that denote “spousal relationship” are stated. The Civil Union Act stops short of granting same-sex couples the right to “marry”; however, it does guarantee “[a] party to a civil union … the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses.
The Civil Union Act in Illinois mandates that the Illinois State Medicaid agency, the Department of Healthcare and Family Services, treat partners in civil unions the same as married partners. The federal Medicaid agency, the Department of Health and Human Services, is allowing states to treat same-sex partners as opposite sex spouses for purposes of Medicaid. Therefore, same-sex partners in Illinois Civil Unions should be afforded Medicaid spousal impoverishment protections if Medicaid coverage of long term care becomes necessary for one of the partners. Dutton & Casey, P.C. is available to represent civil union partners needing long term care in accessing Medicaid and Medicaid spousal impoverishment protections. Please note, federal Medicaid spousal impoverishment protections apply to the Medicaid programs covering nursing homes and assisted living (supportive living) facilities, as well as to the home based services program, the Community Care Program, administered by the Illinois Department on Aging.

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