Since the Supreme Court’s landmark decision striking down Section 3 of the so-called Defense of Marriage Act (DOMA), many federal departments have issued guidance and policy updates detailing the impact of DOMA’s demise for same-sex couples.

The latest guidance comes from the Department of Health and Human Services (HHS) addressing the treatment of same-sex couples in Medicaid and the Marketplaces:

First: same-sex spouses will be eligible to have their tax credits and cost sharing assistance calculated in the same manner as other spouses -- regardless of which state the couple resides in, if the spouses will be filing a joint tax return.

This guidance follows the IRS ruling relating to eligibility for advance premium tax credits (subsidies for purchasing through the Marketplaces) and cost-sharing reductions for same-sex couples.

Unfortunately, in most instances, couples in civil unions and domestic partnerships will still have to apply for their subsidies and cost sharing reductions on an individual bases.

Second: in Medicaid or the Children’s Health Insurance Program (CHIP), DOMA can no longer act as a bar in states recognizing same-sex marriages.

HHS believes it is appropriate for states to recognize same-sex marriages that:

1. are recognized by the state or territory in which the applicant or beneficiary resides, or
2. were celebrated in accordance with the laws of any state, territory, or foreign jurisdiction.

But there are some caveats:

• In situations where Medicaid and CHIP eligibility is determined based on financial eligibility using modified adjusted gross income (MAGI): because of the joint federal-state nature of Medicaid and CHIP programs, HHS is permitting states to adopt a different policy for determining the recognition of same-sex marriages in those states where same-sex marriages are not recognized under state law.
• In situations where eligibility for Medicaid and CHIP is not determined according to MAGI: Financial eligibility is based on rules applied by the Social Security Administration. The relevant marriage recognition policy applicable to Social Security Income (SSI) will apply, and additional guidance will be issued following an announcement on policy from the Social Security Administration.

Third: because states may opt not to recognize same-sex marriages for purposes of Medicaid and CHIP, and because Advance Premium Tax Credit eligibility methodology will follow the IRS ruling, a narrow benefit eligibility gap could arise in states that do not recognize same-sex marriages.

HHS is currently considering this issue. As part of that consideration, they will consult with the states.

To be sure, despite some remaining ambiguity, this guidance from HHS provides greater equality and access to healthcare for same-sex married couples and their families.

As we take another important step forward in the implementation of the Supreme Court’s decision to end DOMA, we continue to celebrate the leadership and commitment of President Obama and his administration, including HHS Secretary Sebelius.

Also, as exciting as these steps forward are, we know they're also incredibly complicated. If you have questions about the impact of the DOMA decision, please don't hesitate to reach out, and we'll make sure to connect you with the answers you need.