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.

As CRE’s comments to CMS explain, although the proposed rule appears to require that LTC facility operators would be required to provide residents with same-sex spouses the same federal rights that are available to all residents with opposite-sex spouses, such is not the case. the CMS proposal indicates that its final rule may exclude the spousal impoverishment protections from the federal spousal rights that same-sex spouses are permitted to enjoy.

In short, CMS’s proposed rule simultaneously

1. Guarantees that same-sex spouses be treated the same as opposite-sex spouses, and
2. Voids the guarantee by permitting states which do not recognize same-sex marriages to define away the marriages of gay Medicaid beneficiaries thus potentially dissolving the right of their spouses to receive Medicaid’s spousal impoverishment protections.

Read CRE’s Comments to CMS (Docket Number: CMS–3302–P)