DEPARTMENT OF HEALTH AND HUMAN SERVICES 
Centers for Medicare & Medicaid Services 
7500 Security Boulevard, Mail Stop S2-26-12 
Baltimore, MD 21244-1850 
 
 
SHO# 15-005 
 
RE: Obergefell v. Hodges and 
Eligibility for Medicaid/CHIP 
 
December 1, 2015 
 
 
Dear State Health Official: 
Dear State Medicaid Director: 
 
On September 27, 2013, and May 30, 2014, the Centers for Medicare & Medicaid Services 
(CMS) issued guidance to states on recognition of marriages between same-sex couples for 
purposes of Medicaid and the Childrens Health Insurance Program (CHIP), following the 
Supreme Courts decision in U.S. v. Windsor, 570 U.S. __, 133 S. Ct. 2675 (2013).  On June 26, 
2015, the Supreme Court, in Obergefell v. Hodges, 576 U.S. ___ (2015), ruled that states are 
required to issue marriage licenses to same-sex couples and to recognize marriages between 
same-sex couples that are lawfully performed in another state.  Therefore, the guidance we 
provided in SHO # 13-006 (http://www.medicaid.gov/Federal-Policy-
Guidance/downloads/SHO-13-006.pdf)) and # 14-005 (http:\www.medicaid.gov\Federal-Policy-
Guidance\Downloads\SMD-14-005.pdf) is superseded by the Obergefell decision, under which 
state Medicaid and CHIP agencies must now recognize marriages between same-sex couples. 
 
CMS Guidance after the Windsor Decision 
 
The Windsor decision invalidated section 3 of the Defense of Marriage Act (DOMA), which 
mandated that the definition of marriage or spouse in any provision of federal law or 
regulation be limited to a legal union between two individuals of the opposite sex.  We issued 
guidance to states on the implications of the Windsor decision for Medicaid and CHIP in a State 
Health Official and State Medicaid Director letter dated September 27, 2013, with respect to 
individuals whose Medicaid/CHIP eligibility is based on Modified Adjusted Gross Income 
(MAGI) (SHO #13-006) and in a State Health Official letter dated May 30, 2014, with respect to 
individuals excepted from MAGI-based methodologies (SHO #14-005). These letters are 
referred to collectively as the Windsor guidance.  In the Windsor guidance, we explained that 
states and territories had the flexibility to apply their own choice-of-law rules in deciding 
whether their law or the laws of another state or territory in which a couple was married would 
apply in recognizing marriages of same-sex couples for purposes of Medicaid and CHIP.  
 
We also provided state plan amendment (SPA) templates, on which we required states to indicate 
their choice regarding how they would treat Medicaid and CHIP applicants and beneficiaries in 
marriages between same-sex couples.  
 
 
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The Obergefell Decision 
 
The Supreme Court held in Obergefell that state laws that exclude same-sex couples from civil 
marriage are unconstitutional.   In light of this decision, the Windsor guidance is no longer 
operative.  In accordance with the Obergefell decision, Medicaid and CHIP agencies must now 
recognize marriages between same-sex couples to the same extent as marriages between 
opposite-sex couples, and must afford the same rights and responsibilities to spouses in such 
marriages, regardless of where the marriage was performed.  
 
Accordingly, states must treat spouses in a marriage between a same-sex couple the same as 
spouses in a marriage between an opposite-sex couple for all purposes under titles XIX and XXI 
of the Social Security Act (the Act) and implementing regulations, including, but not limited to: 
determining financial eligibility for Medicaid and CHIP; determining income for purposes of 
premiums and cost-sharing charges under sections 1916 and 1916A of the Act and implementing 
regulations at 42 CFR section 447.50 et seq.; applying post-eligibility treatment of income rules 
under section 1902(a)(17) of the Act and implementing regulations at 42 CFR sections 435.700 
et seq. and 435.832; applying the spousal impoverishment rules under section 1924 of the Act; 
and applying the liens, adjustments and recoveries, and transfer of assets requirements described 
in section 1917 of the Act.  
 
Implementation Considerations 
 
We expect that states will begin making the necessary policy and systems changes as quickly as 
possible.  Additionally, because Medicaid and CHIP agencies must recognize lawfully married 
same-sex couples in the same way they recognize opposite-sex couples, we no longer require 
that states submit a state plan amendment indicating how they treat spouses in a  marriage 
between same-sex couples.  We will work with states that have already received approval for 
such SPAs to remove these pages from their state plans.   
 
If you have questions about this guidance, please contact Gene Coffey at 410-786-2234 or 
gene.coffey@cms.hhs.gov.  
 
            Sincerely, 
 
                /s/ 
             
           
            Vikki Wachino 
            Director 
 
 
 
 
 
 
  Page 3 - State Health Official and State Medicaid Director 
 
 
 
cc:  
 
National Association of Medicaid Directors 
  
National Academy for State Health Policy  
 
American Public Human Services Association  
  
National Governors Association  
 
Council of State Governments  
 
Association of State and Territorial Health Officials