With the House of Representatives in GOP hands and the number of Republicans in the Senate sufficient to prevent a vote on anything they solidly oppose, the Obama administration is limited in what it can currently deliver for the LGBT community through legislative means.
But the administration’s process of scrutinizing existing statutes and regulations to figure out what might be achieved through Executive Branch actions –– an effort begun with a presidential instruction issued during LGBT Pride Month in 2009 –– continues.
The most recent is a June 10 letter from the federal Centers for Medicare & Medicaid Services to state Medicaid directors, advising them of circumstances in which their programs may voluntarily take account of same-sex partner relationships in ways advantageous to gay and lesbian couples receiving Medicaid.
Obama administration highlights ways to protect assets of same-sex couples
“Medicaid gives states remarkable flexibility to set these kinds of policies,” said Cindy Mann, the Centers’ deputy administrator, said in a written release. “We want to assure states that they are within the law when they make the choice to extend equal financial rights and protections to all of their citizens receiving Medicaid services, regardless of sexual orientation.”
The first situation the letter addresses concerns a provision of the Social Security Act that allows states to impose liens on a Medicaid beneficiary’s property if a court determines benefits were improperly paid or where that recipient is institutionalized and not expected to be able to return home. The statute specifies that states may not impose such liens if that property is occupied by a spouse, a minor child, or a blind or disabled child of any age.
The administration’s letter suggests states could voluntarily decide not to impose liens on property occupied by a Medicaid recipient’s same-sex spouse or domestic partner. In fact, the Obama administration encourages states to amend their Medicaid plans to make this remedy explicit.
The second situation concerns the penalties imposed on Medicaid recipients who hasten their benefits eligibility by spending down their assets in transfers made at less than fair-market value. When the government discovers such transactions, it imposes penalties in the form of ineligibility time periods, but there are exceptions in cases of asset transfers to spouses and in certain “undue hardship” situations.
The federal government advises that transfers to same-sex spouses and domestic partners can be covered as such a hardship situation.
Finally, federal law lays out conditions under which state Medicaid programs can seek recovery against the estates of deceased Medicaid beneficiaries to recoup benefit expenses, but that action is authorized only if there is no surviving spouse or minor or disabled child. Again, there is also an undue hardship exception, which the administration says states have the discretion to apply to surviving same-sex partners.
Though highly technical, these remedies can be crucial for families affected, and the Medicaid letter is another in a long and growing list of instances in which the Obama administration has combed existing law and regulations to recognize and provide benefits to same-sex partners and their families.
Because of the Defense of Marriage Act, the administration’s efforts remain limited, and some gay rights opponents may argue Obama is pushing the limits and has perhaps gone over the line. Election of a Republican president in 2012 could lead to a pullback in reforms the president has initiated, just as the Bush administration retreated on the protections for gay federal employees earlier pioneered by the Clinton administration.
One area, however, where the administration has yet to move decisively is in dealing with the status of binational same-sex partners. Although it has voluntarily suspended deportation of surviving different-sex spouses of US nationals –– pending legislative action to deal with a gaping hole in existing law –– it has refused to commit to halting removal of same-sex partners, insisting that any definitive action must await comprehensive immigration reform.
As with Medicaid, however, DOMA could be construed as not being an absolute bar to exercising discretion under the rubric of “undue hardship.” In South Africa, for example, the Constitutional Court ruled this is an issue involving the right of intimate association of a citizen who does not want to be forcibly parted from his or her same-sex partner. The Department of Justice could adopt similar reasoning to suspend deportations in cases of documented committed same-sex partners.
Perhaps Attorney General Eric Holder’s recent intervention in one such deportation case –– involving a couple in a New Jersey civil union –– suggests this other shoe is soon to drop, but so far the Justice Department has denied that action signals a more general change in policy.