How Does Medicaid View Same Sex Partnerships?
The past year has seen failed attempts by supporters of same sex marriage to have the definition of marriage expanded to include gay and lesbian unions. However, some states have passed laws creating domestic partnerships and civil unions, which then carry with them some of the benefits of marriage. New Jersey has a civil union law which it established in 2007. So, how would partners in a civil union be treated for Medicaid purposes? Not surprisingly, the answer isn’t so clear cut.
While Medicare, for example, is a federal program governed by rules established by Congress, Medicaid, on the other hand, is a mix of federal and state law. It is that attempted blend of two governmental systems and sets of laws and regulations that makes the Medicaid system so uncertain for those trying to tap into it. The issue of civil unions is a perfect example.
New Jersey’s law states that civil union couples are entitled to the same benefits (as well as held to the same set of responsibilities) as heterosexual spouses, including Medicaid. But, it’s not that simple. Of course, with the government it never is. That’s because there is a certain federal law known as the Defense of Marriage Act which says that, in interpreting any act of Congress the term marriage means only a legal union between a man and a woman. This presents a problem for states recognizing civil unions because they get federal money to support their Medicaid programs. So, they may be violating federal law and possibly lose federal funding by treating civil union partners as married for Medicaid purposes. At least that’s what the federal agency overseeing Medicare and Medicaid has indicated on at least one occasion. On the other hand, the New Jersey’s civil union law seems quite clear that civil union couples are to be treated as married for purposes of Medicaid.
Where does that leave things? We’ll probably have to battle this one out in court. And, by the way, it isn’t necessarily the case that treating civil union partners as married is best when it comes to Medicaid. As readers of this blog are aware each case must be examined individually. In some instances it would be advantageous to be married, in others it wouldn’t. But, the question does raise some interesting issues and is just another example of why the long term care system is so impossibly confusing to navigate alone.