By Redman, Daniel
Aging Today , Vol. 32, No. 4
In the past six months, agencies in the Obama Administration have taken important steps to protect LGBT elders. These changes will protect the rights of LGBT people to visit partners in the hospital, to remain financially afloat when one partner needs longterm care and to fight housing discrimination. Why do these new rules matter, and what gaps remain?
Slow Moves Toward Equity
When a married person begins nursing home care covered by Medicaid, federal rules protect the spouse that remains in the community. Opposite-sex married couples may transfer assets to each other without penalty, and the state may not recover costs for long-term care through estate recovery and liens when there is a surviving spouse.
Additionally, the law requires that a designated amount of a couple's income and assets be reserved to support the community spouse. Any remaining income goes toward paying the monthly nursing home bill, with a combination of state and federal Medicaid funds paying the rest. These provisions are meant to protect the community spouse from impoverishment.
In 2008, Massachusetts gave same-sex couples equivalent protections by using state funds to pay for care. Everywhere else, however, LGBT partners are treated as legal strangers.
Take Ray and George, two clients of Services & Advocacy for GLBT Elders (SAGE), profiled in the SAGE report Improving the Lives of LGBT Older Adults. Ray has Alzheimer's disease, and George worries about when Ray might need a nursing home.
Without Medicaid's spousal impoverishment protections, Ray would have to spend down virtually all of his assets to qualify for Medicaid-covered long-term care, leaving nothing for George, whose income is much smaller. That the government doesn't recognize their relationship adds stress to George's already significant caregiving burden, and he wonders how he'll pay rent for the home they've shared for 44 years.
The U.S. Department of Health and Human Services has taken small steps toward equity. On June 10, 2011, the Centers for Medicare and Medicaid Services issued a letter informing states of options to more equitably apply rules governing Medicaid liens, transfer of assets and estate recovery for same-sex spouses and domestic partners.
But this guidance doesn't enable states to extend key spousal impoverishment protections to same-sex couples. Laws like the one in Massachusetts remain necessary to protect same-sex couples' income and assets for the partner remaining in the community. Says San Francisco attorney Deb Kinney, "Until the states adopt these protections, many LGBT people, and especially LGBT elders, feel very vulnerable not knowing what rights and protections they actually have as compared to their neighbors next door."
Vital Step Forward...but
In January 2011, the Obama Administration issued regulations protecting hospital visitation rights of same-sex partners. For all LGBT people- elders, adults or young people- this is a vital step forward. For Janet Langbehn and her late partner Lisa Pond, the rules could have prevented a great deal of anguish.
In 2007, Janet and Lisa took their children on a family cruise in Florida. In the middle of the trip, Lisa suffered an aneurysm and collapsed. When they arrived at the hospital, a nurse told Janet, "I need you to know this is an anti-gay city and an anti-gay state, and you are not going to get to see her or know her condition." Even when Janet produced a power of attorney document and healthcare proxy, doctors and hospital staff ignored them. In 2008, a federal district court dismissed Janet's lawsuit against the hospital.
Two years later, when President Obama announced new rules protecting LGBT families, he called Janet personally to offer condolences. The new provisions require all medical facilities receiving Medicaid or Medicare funding to "inform patients, or an attending friend or family member, of the patient's rights to visitors of his or her choosing. …