Senior Life: Making marriage more equal

July 25, 2008
By

DAVID TABER

Wilkerson, Malia move to codify rights for same-sex couples; Local LGBT Aging Project worked on MassHealth bill

It was by sheer coincidence that the state Senate and House each ended up passing separate pieces of legislation expanding the rights of gay couples on July 15.


In a widely publicized move, the Senate that day voted to repeal a 1913 law prohibiting out-of-state couples from marrying in the Commonwealth if their marriage would not be recognized by their home state. Most other states do not allow same-sex marriage. Local state Sen. Dianne Wilkerson is the key backer of the repeal.

Meanwhile the House voted to approve the MassHealth Equality Bill, sponsored by Rep. Liz Malia, who represents half of Jamaica Plain.

“I’m not sure if we had planned it that it would have worked that way,” Malia said of the coincidental timing.

The Senate also voted on July 23 to pass the MassHealth bill, which will make sure seniors in same-sex marriages have the same services and rights as straight couples.

“This is a terrific day. We have spent the past four years working to ensure marriage equality is made real by passage of this important legislation,” said Dale Mitchell, president of the LGBT Aging Project based at Ethos on Amory Street and chair of its policy committee, in a written statement.

Now it needs to be signed by the governor before it becomes law. The repeal of the 1913 law still needs to be approved by the House and signed by the governor for it to become law.

The legislation will provide same-sex spouses equal access to benefits under the state’s MassHealth program.

Federally, the Defense of Marriage Act bars same-sex couples from receiving certain benefits under Medicaid. But the bill that passed both houses would grant couples equivalent services through MassHealth, the state program that administers Massachusetts’ Medicaid program, using state funding.

The law would, “more fully implement Goodridge,” the 2004 Supreme Judicial Court decision that allowed gay marriage in Massachusetts, by granting same-sex couples “the rights and benefits of straight couples under Medicaid,” Malia told the Gazette.

The law would primarily protect couples from impoverishment if one partner needs nursing home care.

Under the current rules, anyone in need of long-term care who is not in a mixed-gender marriage is forced to devote all of his or her assets, including proceeds from the fair-market sale of his or her home, to paying for that care.

But Medicaid makes an exception for married couples. According to testimony on the bill submitted in March by Deborah Filler and Betsey Crimmins, senior attorneys with Greater Boston Legal Service’s LGBT Elder Legal Rights Project, “One very important exception to this rule is that a sick spouse needing MassHealth for nursing home care can transfer assets without any penalty to the spouse remaining in the home.”

Those rules also bar MassHealth from recouping nursing home costs by placing a lien on a person’s property while his or her spouse is residing there.

Currently, providing the same protections for same-gender couples would affect an estimated 212 of the over 19,000 same-gender married couples in the state, an aide from Malia’s office told the Gazette.

The Goodridge decision says, “The protections, benefits and obligations of civil marriage provided opposite-sex couples must be provided equally to same-sex couples.” Malia said her legislation would help to codify that ruling.

“Folks working with the elderly said, ‘This is going to be a pretty big gap here’” without legislation, she said.