Attorney General: Honorable Michael P. Starkowski, Commissioner, Department of Social Services, Formal Opinion 2007-028, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 14, 2007

 

Michael P. Starkowski

Commissioner

Department of Social Services

25 Sigourney Street, 12th Floor

Hartford, CT 06106

 

Dear Commissioner Starkowski:

 

Your agency has requested our legal advice concerning the impact of Conn. Gen. Stat. § 46b-38aa et. seq.,1 on eligibility for certain programs of the Department of Social Services.

 

This opinion addresses only the programs specifically mentioned in your request for advice. These are (1) the jointly funded state and federal Medicaid Program; (2) programs such as Temporary Assistance for Needy Families (TANF) that are funded by the federal government with block grants, but administered by the state; and (3) programs funded entirely by the state. You ask that we confirm your Office of Legal Counsel’s conclusions as to how your agency should determine eligibility for certain assistance programs for an individual who has entered into a civil union.

 

 We conclude that all civil union partners and civil union families who meet state eligibility requirements are entitled to benefits under state law.  The only questions are whether, and to what extent, the state may use federal funds or seek federal reimbursement. 

 

In the particular case of the Medicaid program, the state has two funding choices.  The state may use only state funds to pay benefits as is done in Vermont, considering the income and resources of both partners in a civil union for eligibility purposes without regard to eligibility under federal law, or the state may treat partners to a civil union either as individuals under federal law for Medicaid eligibility, or as civil union partners, as occurs in Massachusetts.   For those civil union partners who do qualify as individuals for federal Medicaid, the state may seek reimbursement from the federal government.  For those partners who do not qualify under federal criteria as individuals, but qualify under state law because of their civil union status, the state must pay those costs that are not allowed by Medicaid.   

 

 With respect to programs such as TANF that are funded by the federal government with block grants but administered by the state, the primary purpose of such programs is to assist families and children in need.  Because marital status is not an eligibility criteria in those programs, there is no clear prohibition on using the federal block grants to provide benefits to civil union families, but you may wish to seek guidance from federal authorities. The state may also use state funds to provide these benefits.

With respect to programs funded entirely by the state, state law requires that benefits from those programs be available to partners in civil unions.  However, under the State Supplementation Program, state eligible individuals are also eligible for Medicaid.  It may not be possible to seek matching federal Medicaid funds for civil union partners who qualify for the State Supplementation Program, but who do not qualify for Medicaid as individuals under federal law.

 

Background

Federal law does not recognize civil unions, or same-sex marriages, under any circumstances.  Congress has specifically provided in the Defense of Marriage Act (DOMA) that:

 

[i]n determining the meaning of any Act of Congress . . . the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or wife.2

 

1 U.S.C. § 7.

 

The State of Connecticut, however, has recognized the institution of civil unions for same-sex couples.  Public Act No. 05-10, now codified as Conn. Gen. Stat. § 46b-38aa et seq.,  provides that:

 

[p]arties to a civil union shall have all the same benefits, protections and responsibilities under law, whether derived from the general statutes, administrative regulations or court rules, policy, common law or any other source of civil law, as are granted to spouses in marriage, which is defined as the union of one man and one woman.

 

Conn. Gen. Stat. § 46b-38nn (Emphasis supplied.)

 

Further, Conn. Gen. Stat. § 46b-38oo provides that:

 

[w]herever in the general statutes the terms “spouse,” “family,” “immediate family,” “dependent,” “next of kin,” or any other term that denotes the spousal relationship are used or defined, a party to a civil union shall be included in such use or definition,  and wherever . . . . the term “marriage” is used or defined, a civil union shall be included in such use or definition.

 

Conn. Gen. Stat. § 46b-38oo.

 

There are only a few limited exceptions to this policy, which are set forth in Conn. Gen. Stat. §  46b-38oo.  The exceptions, which are statutes in which the word "marriage" should not be deemed to include civil unions, include Section   17b-137a (recording of Social Security numbers); and Section 45a-727a(4)(specifically finding that the “current public policy of the state of Connecticut  is now limited to a marriage between a man and a woman.”)    

Jointly Funded State and Federal Programs

 

Your inquiry as to the impact of the enactment of civil unions on your agency’s administration of jointly funded state and federal programs is specific to the Title XIX (Medicaid) program.

 

Title XIX of the Social Security Act is jointly funded by the federal and participating state governments.  See 42 U.S.C. § et seq.  State participation in the Medicaid program is voluntary, but states that choose to participate and receive federal funding must comply with federal Medicaid laws and regulations.    See Himes v. Shalala, 999 F.2d  684, 686 (2d Cir. 1993).   Conn. Gen. Stat. § 17b-2(8) designates the Department of Social Services as the state agency responsible for the administration of the Medicaid program in this state.

 

Participating states must submit a Medicaid “state plan” to the administering federal agency, the Centers for Medicare and Medicaid Services (“CMS”), for approval.  See 42 CFR 430.10 (“The state plan is a comprehensive written statement submitted by the agency describing the nature and scope of its Medicaid program and giving assurance that it will be administered in conformity with the specific requirements of Title XIX, the regulations in this [c]hapter and other applicable official issuances of the Department . . . . The state plan contains all information necessary for CMS to determine whether the plan can be approved to serve as a basis for Federal financial participation (FFP) in the state program.”)  A state’s failure to administer its Medicaid program in conformity with federal requirements can result in the loss of FFP.  42 U.S.C. § 1396c; 42 C.F.R. § 430.35.          

 

Federal statutes and regulations govern the evaluation of assets and income when determining eligibility for Medicaid benefits for both individuals and married couples, such as the treatment of income and assets; the extent to which one spouse’s income and assets may be attributed to the other spouse; and transfers of assets and possible penalties for such transfers.

 

The State of Connecticut has enacted its own statutes and regulations to reflect these federal requirements, as well as to address certain areas of the Medicaid program not addressed by federal law and left to the states’ discretion.

 

In response to inquiries from two other states that have recognized same-sex unions and are participating in the Medicaid program, CMS has unequivocally taken the position that all federal funds used to reimburse a state for benefits or administrative costs are subject to DOMA.   (See CMS Responses to inquiries from State of Vermont,3 dated August 28, 2003, and to the Commonwealth of Massachusetts, dated March 22, 2004, and May 28, 2004.4)   For example, CMS has specifically advised the State of Vermont that “Vermont must pay the full cost, including the cost of administration, of a program that does not comply with federal law.”  See CMS response to Vermont’s Question 3 at 3.

 

According to CMS, this also means that for the purposes of the Medicaid program, “partners in a civil union could not be considered spouses for any purpose including deeming of income and/or resources.”  See CMS response to Vermont’s Question 1 at 1.

 

CMS advised Vermont that:

[t]o assure that there is no conflict and for the state Medicaid program to remain in compliance with all applicable federal laws, the state can elect to set up a separate state financed and administered program in which no federal funds are used if the state has reason to believe that Medicaid long-term care benefits in the form of spousal protections might be provided as a result of a civil union.  Or, the state can elect to apply its Civil Union statute in the context of its Medicaid program, as long as it separately identifies any service and administrative expenditures that result from the difference between its definition of spouse from the DOMA definition and does not submit any claims for FFP for those expenditures.

 

CMS Response to Vermont’s Question 3 at 2.

 

In addition, CMS has advised the Commonwealth of Massachusetts that if an applicant spouse in a same-sex marriage is not eligible for Medicaid, but would be eligible if not married, denial of Medicaid benefits to that individual would violate federal law:

 

If the applicant is eligible for medical assistance under the state plan, the state must provide medical assistance to the applicant, or be in violation of federal law.  If, for example, the applicant is ineligible under state law because his same-sex spouse has income or resources which are deemed to him, thereby making him ineligible, this deeming would not be permitted under federal Medicaid law.  Deeming of income or resources is only permitted between spouses, as defined by DOMA, or from a parent to a minor or disabled child.  Because a same-sex couple are not spouses under Federal law, the deemed income or resources which would result in the applicant’s ineligibility cannot be recognized under Federal law.

 

Letter from CMS, dated May 28, 2004, to Commonwealth of Massachusetts.

 

The Commonwealth of Massachusetts also inquired about liens and recovery and the interplay between federal and state law, such as whether a state could opt not to place a lien on real estate where a same-sex spouse is lawfully residing in the couple’s home.  CMS responded that:

 

Each state follows its own laws or regulations on imposition of liens and on estate recoveries within Federal guidelines.  Federal language which restricts imposition of liens or adjustment or recovery in the case of a lien until after the death of a surviving spouse would not apply to the surviving member of a same sex couple.  However, while imposition of a lien on real property is optional, estate recovery from real property subject to a lien is mandatory.

 

CMS Response to Commonwealth of Massachusetts, Question 6 at 3.

 

Finally, you report that Vermont and Massachusetts have taken different approaches to resolving the conflicting issues presented by administering the Medicaid program in a state that recognizes civil unions or same-sex marriages. 

 

          Vermont has established a separate state health care program for parties to a civil union, considering the income and resources of both parties to the civil union in determining eligibility.  Accordingly, Vermont does not determine whether individuals who are parties to a civil union are also eligible as single individuals for the Medicaid program. 

 

          Massachusetts did not establish a separate state health care program.  It treats parties to a same-sex marriage as individuals when determining eligibility under the Medicaid program, thereby continuing to claim FFP for those individuals.

 

          Your Office of Legal Counsel has proposed the following resolution for the State of Connecticut:

 

[W]e believe that the best approach for the Department is to give effect to the state’s civil union statute by treating the civil union partner as a “spouse,” and also making sure that an applicant was not foregoing any benefits that would be otherwise available under the Medicaid program were the person applying as an individual.  In other words, if a civil union partner were ineligible for a Medicaid benefit because federal law does not recognize the civil union partner as a spouse, then this benefit would still be provided to the partner and would be funded using state-only dollars.

 

If this approach were followed, the Department would evaluate a civil union partner’s eligibility in two different ways in order to determine whether consideration of the spouse’s income would make a difference in the eligibility.  In other words, if an individual applied for Medicaid as a partner in a civil union, we would assess how the person would fare under the federal Medicaid program as an individual.  If eligible, then the person would receive regular Medicaid benefits.  If ineligible for federal Medicaid as an individual, the Department would need to determine if the applicant would be eligible if treated as a “spouse,” even though the federal law does not recognize same-sex spouses.  If so, the state would make the person eligible, but could not submit any claims for FFP for the expenditures related to that case.

 

In using this approach the Department would be giving effect to both federal and state law.  If, when treating the civil union partner as an individual,  as required by federal law, the person were eligible for Medicaid, this would allow the state to recover FFP for the dollars it spends on that individual.  If the civil union partner is not eligible under federal law as an individual, then the Department would assess the civil union  partner’s eligibility as a “spouse” under state law to determine whether the individual is ineligible.  If so, benefits would be granted and state funds would be used to pay for the benefits.

 

While we do not believe that CMS’s statement to the Commonwealth of Massachusetts that denial of Medicaid benefits to an eligible individual necessitates a “dual evaluation” of eligibility as both an individual and as a “spouse” in a civil union, this approach may be considered by your department.  While an argument could be made that this approach favors civil union partners over marriage partners because it allows civil union partners two means for obtaining benefits, this approach does meet both state and federal legal requirements.  The state must use state funds to provide benefits to any partner to a civil union who is not eligible for  Medicaid benefits if he or she applied as an individual, but would be eligible for such benefits if he or she applied as a spouse.

 

Another approach that may be taken is an entirely state funded program, as used in Vermont, in which eligibility is only determined based upon the income and assets of both partners to the civil union, without regard to their eligibility as individuals under federal Medicaid rules.  CMS separately advised the State of Vermont to create such a separate program:

 

[t]o assure that there is no conflict and for the state Medicaid program to remain in compliance with all applicable federal laws, the state can elect to set up a separate state financed and administered program in which no federal funds are used.

 

CMS Response to Vermont’s Question 3 at 2 (emphasis supplied).

 

Federally Funded Block Grant Programs Administered by the State

Your next inquiry concerns programs administered by the Department for which federal funding is provided,  but for which eligibility determinations are determined by the state within broad federal parameters.  Your inquiry primarily focuses on the Temporary Assistance for Needy Families (“TANF”) program, but you note that your agency receives federal funds for other programs, such as energy assistance, housing assistance, and child support.

 

TANF was created by the Welfare Reform Law of 1996. TANF became effective July 1, 1997, and replaced what was then commonly known as welfare: Aid to Families with Dependent Children (AFDC) and the Job Opportunities and Basic Skills Training (JOBS) programs.  See 42 U.S.C. § 601 et. seq.   The purpose of TANF is:

to increase the flexibility of States in operating a program designed to –

(1) provide assistance to needy families so that children may be cared for in their homes or in the homes of relatives;

(2) end the dependence of needy parents on government benefits by promoting preparation, work, and marriage;

(3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numeric goals for preventing and reducing the incidence of these pregnancies; and

(4) encourage the formation and maintenance of two-parent families.

 

States may use their TANF grants “[i]n any manner that is reasonably calculated to accomplish [TANF’s] purpose . . . .”  Public Law 104-93, Section 404(a)(1).  States must submit plans, or “outlines,” of their family assistance programs to the federal Department of Health and Human Services, Administration for Children and Families.  These plans, however, are reviewed for completeness only.  Public Law 104-93, Section 402.

 

          Eligibility for each state’s TANF program is left to each individual state. Conn. Gen. Stat. §  17b-112 sets forth the general terms of eligibility for families5 in the State of Connecticut, including waivers and exemptions from certain federal requirements. 

 

          TANF promotes heterosexual marriage, but it does not explicitly prohibit the use of TANF funds for families in the context of same sex unions, such as civil unions in the State of Connecticut.  TANF funds may be and are used for single-parent families.  TANF does not mandate that the grants to states be used only for families with “spouses” in a “marriage” as defined by DOMA.  

 

Your Office of Legal Counsel concluded that

[I]t is permissible to use the federal TANF dollars for parents and children in the context of civil unions for the following reasons:  First, the emphasis of TANF is on children, not on the relationship between the parents of the child.  The goal is to ensure that the children are well cared for, regardless of the status of their parents’ relationship.  Second, except for the policy language in Section 101 of the Public Law 104-193, there is no mention of the word “marriage” in TANF.  Similarly, the terms “marriage,” “spouse,” “husband,” or “wife” do not appear in any part of TANF that addresses eligibility requirements.  Finally, and related to the second reason, the whole point of making TANF a block grant was to give states flexibility to administer the federal dollars in any way they thought it was most effective, and in accordance with their state laws.

 

There are other federal funds that the Department receives to administer other programs, for example programs that provide energy assistance, housing assistance, and child care assistance.  The Department also receives federal child support funds to administer the child support program.  In all of these cases, the Department believes that, since the federal laws authorizing payment to the state do not limit the use of funds to those who are “married,” or to “spouses,” as those terms are defined in DOMA, the Department should follow state law and treat people joined in civil unions in the same way that it treats people joined in marriage.  

 

We agree that a substantial purpose of TANF  is to promote the well-being of children and families.6  Section 404 of Public Law 104-93 provides that each state is to use its block grant “in any manner that is reasonably calculated to accomplish the purpose of this part . . . .”  This section appears to permit the use of TANF funds for children and families in the context of civil unions rather than to deny assistance to such children and families.   You may wish to seek federal guidance on this matter.

 

As we noted previously, another approach would be to only use state funds for families and children in the context of civil unions.  Your agency has done so in at least one other instance, specifically, the provision of temporary family assistance for aliens who do not qualify for federal cash assistance.  See Conn. Gen. Stat. §  117b-112c. 

 

State Funded Programs

 

Your final inquiry pertains to programs entirely funded by the state, and for which the state establishes and follows its own eligibility requirements.  You then make a specific reference to the state’s State Supplementation Program (“State Supplement”), Conn. Gen. Stat § 17b-600.

 

Your Office of Legal Counsel concluded that

 

As a general matter, when programs are funded entirely by the state and the state establishes and follows its own eligibility requirements and provides the benefits, the state civil union statute will be applicable. 

 

We agree that such programs must recognize civil unions. However, we believe that the State Supplementation Program (“State Supplement”), presents a unique issue.

 

 The State Supplement Program, codified at Conn. Gen. Stat. §  17b-600, provides cash benefits using state funds only to aged, blind, and disabled individuals.  Partners in a civil union  should be treated as such when applying for State Supplement benefits and eligible partners are entitled to the state supplement benefits.  However, pursuant to the state’s Medicaid state plan, individuals who qualify for State Supplement benefits are also eligible for Medicaid.  These individuals are included in the state plan as an optional coverage group.  See 42 U.S.C. § 1396a(a)(10)(A)(ii)(XI); 42 CFR § 435.121; 42 CFR § 435.230; Medicaid State Plan, Attachment 2.2-A.

 

Your Office of Legal Counsel concluded that

[t]he Department . . . must follow state law when making an eligibility determination for individuals applying for benefits under State Supplement.  If it happens that an individual is in a civil union and is eligible for State Supplement when treated as a partner in a civil union, the Department believes that this person should also be eligible for Medicaid, just as any person found eligible for State Supplement, and that matching federal funds may be claimed for the Medicaid dollars spent on that individual.  Nevertheless, an argument could be made that, since the civil union partner would not have been found eligible for State Supplement as an individual, and is only eligible by virtue of being in a civil union, it may be that the person would not have been found eligible for State Supplement as an individual, and that the state should fund the Medicaid for this individual without the benefit of FFP.

 

Where an individual is eligible for State Supplement solely because he is a partner in a civil union, it is uncertain whether matching federal Medicaid funds for that individual will be available given DOMA's restrictions on federal Medicaid funds, as discussed above.  

We trust that the foregoing is responsive to your inquiry.

 

                                                              Very truly yours,

  

RICHARD BLUMENTHAL

ATTORNEY GENERAL

  

     Tanya Feliciano DeMattia

                                                               Assistant Attorney General

 

 



1Conn. Gen. Stat. §  46b-38aa et. Seq., established civil unions for same-sex couples.

 

2 We note that DOMA makes no reference to the terms “family” or “child.”

3 The State of Vermont enacted a civil union law, effective July 1, 2000, which provides, in pertinent part, as follows:  “Parties to a civil union shall all have the same benefits, protections and responsibilities under law, whether they derive from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses in a marriage.”  15 V.S.A. § 1204(a).

 

4 In 2003, the Supreme Judicial Court of Massachusetts, in the case of Goodridge v. Department of Public Health, 400 Mass. 309, 798 N.E. 2d 941 (2003), held that a law that barred an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex, violates the state constitution.

5 Neither DOMA nor TANF defines the term “family.”

6 Presumably the other federally funded programs you referenced but did not specifically name were also established primarily to promote the well-being of individuals needing assistance, without regard to DOMA’s limitations on the definitions of “marriage” and “spouse.”


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