Regulatory Conflicts in CMS’s Proposed Medicaid Rule May Strip Same-Sex Spouses of Federal Financial Protections

CMS’s proposed Medicaid rule on patient protections for beneficiaries in nursing homes (if finalized as drafted) would create a conflict for Long-Term Care facility (nursing home) operators. The conflict would be between CMS’s proposed new regulatory requirements for LTC facilities and the exercise by some state Medicaid programs of their CMS-granted authority that permits the programs to not recognize same-sex marriages.

At issue is whether or not CMS is requiring LTC facility operators in states that do not recognize same-sex marriages to provide Medicaid’s federal “spousal impoverishment” (42 U.S.C. 1396r–5) financial protections to the same-sex spouses of beneficiaries irrespective of where they reside.