Additional Guidance on U.S. v. Windsor

The Centers for Medicare and Medicaid Services (CMS) has issued a state Medicaid director letter (SMD# 14-005) further clarifying changes in eligibility standards for Medicaid and the Children’s Health Insurance Program (CHIP) stemming from the Supreme Court decision in United States v. Windsor.  Specifically, this decision invalidates section 3 of the Defense of Marriage Act (DOMA). 

Earlier CMS guidance (9/27/13 - SHO# 13-006) on U.S. v. Windsor, clarified the impact on populations qualifying for Medicaid based on the revised Modified Adjusted Gross Income (MAGI) calculations, which became effective Jan. 1, 2014 as mandated by the federal Affordable Care Act.  This most recent letter reviews the impact of the Windsor decision on populations whose Medicaid status is not determined on the basis of MAGI methodologies.

Section 3 of DOMA essentially barred the federal government from recognizing the legitimacy of same-sex marriages.  As a result of U.S. v. Windsor, however, DOMA no longer controls the federal definition of marriage or spouse and therefore no longer bars states from recognizing same-sex marriages in Medicaid or CHIP.  Furthermore, the federal Department of Health and Human Services has adopted a policy of treating same-sex marriages the same as opposite-sex marriages.  For example, in the recent HHS guidance Impact of United States v. Windsor on Skilled Nursing Facility Benefits for Medicare Advantage Enrollees, they state that Medicare Advantage plans “must cover services in a Skilled Nursing Facility (SNF) in which a validly married same-sex spouse resides to the extent that they would be required to cover the services if an opposite-sex spouse resided in the SNF.”

Furthermore, according to CMS:

In our September 27, 2013 guidance we explained that, in view of the unique federal-state relationship that characterizes the Medicaid and CHIP programs, we interpreted section 1902(e)(14)(G) of the Social Security Act (the Act), which incorporates section 36B(d)(2) of the Internal Revenue Code, to permit states and territories to apply their own choice-of-law rules in deciding what law governs the determination of whether a couple is lawfully married, even though both the IRS and the Marketplace have adopted a policy that recognizes a same-sex marriage if it is valid in the state in which the couple resides or valid in the jurisdiction where the marriage was celebrated. That is, CMS is permitting states and territories to adopt a different same-sex marriage recognition policy than the IRS and the Marketplace if their laws do not recognize same-sex marriages. Under this approach, with respect to Medicaid and CHIP eligibility determinations for populations whose income is determined on the basis of MAGI, a state is permitted and encouraged, but not required, to recognize same-sex couples who are legally married under the laws of the jurisdiction in which the marriage was celebrated as spouses for purposes of Medicaid and CHIP … we are now applying the same guidance to an individual whose financial eligibility for Medicaid is not determined using MAGI rules but rather is based on the methodologies applied by the Social Security Administration (SSA) in determining eligibility for SSI.

(Source: CMS SMD# 14-005)

Here in New York, we now have the Marriage Equality Act officially legalizing same-sex marriage, so that the intent and spirit of the new federal guidance should be more readily accomplished than in states in which there is disagreement between the federal and state policies.  Two state Department of Health General Information System messages should guide local social service districts in the review of Medicaid applications for same-sex couples:  GIS 11 MA/023 and GIS 08 MA/023.  In summary, these messages state that legally married same-sex couples are to be treated the same as non-same-sex couples for Medicaid and Social Security Income eligibility purposes.

Contact: Patrick Cucinelli, pcucinelli@leadingageny.org, 518-867-8827