DEPARTMENT OF HEALTH & HUMAN SERVICES 
Centers for Medicare & Medicaid Services 
7500 Security Boulevard, Mail Stop S2-26-12 
Baltimore, Maryland   21244-1850 
 
 
             
SHO# 13-006 
              
              
September 27, 2013 
 
            Re:  United States v. Windsor 
 
Dear State Health Official: 
Dear State Medicaid Director: 
 
On June 26, 2013, the Supreme Court, in United States v. Windsor, 570 U.S. __, 133 S. Ct. 2675 
(2013),  invalidated Section 3 of the Defense of Marriage Act (DOMA), which provided federal 
definitions of marriage and spouse that precluded federal recognition of same-sex marriages.  
The purpose of this guidance is to advise you of the implications of the Windsor decision for 
Medicaid and the Childrens Health Insurance Program (CHIP).  As discussed below, because 
Section 3 of DOMA no longer controls the definition of marriage or spouse under the federal 
framework for state Medicaid and CHIP programs, DOMA is no longer a bar to states 
recognizing same-sex marriages in Medicaid or CHIP.   
 
Medicaid eligibility rules vary depending on the eligibility group.  For certain Medicaid and 
CHIP populations, financial eligibility is determined using modified adjusted gross income 
(MAGI).  Section 1902(e)(14)(G) of the Social Security Act (Act) incorporates the definition of 
MAGI provided in section 36B(d)(2) of the Internal Revenue Code.  Consistent with the recent 
Internal Revenue Ruling issued by the Internal Revenue Service (IRS), we interpret section 
1902(e)(14)(G), which incorporates section 36B(d)(2), to treat lawfully married couples as 
spouses for purposes of the MAGI calculation.  For federal tax purposes, the IRS has adopted a 
policy that recognizes a same-sex marriage if it is valid in the state in which the couple resides or 
valid in the jurisdiction where the marriage was celebrated.  The Department of Health and 
Human Services (HHS) has adopted this policy in other contexts, including in the Medicare 
program guidance Impact of United States v. Windsor on Skilled Nursing Facility Benefits for 
Medicare Advantage Enrollees.  To do so here would increase consistency among federal 
programs and would be consistent with the policy of HHS to treat same-sex marriages on the 
same terms as opposite-sex marriages, to the greatest extent possible.  Therefore, as a general 
matter, for purposes of the Medicaid and CHIP programs, we believe that it is appropriate 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.  However, in view of the unique federal-state relationship that 
characterizes the Medicaid and CHIP programs, we interpret section 1902(e)(14)(G), which 
incorporates section 36B(d)(2), to permit states and territories to apply their own choice-of-law 
rules in deciding what law governs the determination of whether a couple is lawfully married; 
that is, we are permitting states and territories to adopt a different same-sex marriage recognition  Page 2  State Health Official and State Medicaid Director 
 
policy if they do not recognize same-sex marriages consistent with their laws.  Under this 
approach, with respect to Medicaid and CHIP, a state is permitted and encouraged, but not 
required, to recognize same-sex couples who are legally married under the laws of the 
jurisdiction in which the marriage was celebrated as spouses for purposes of Medicaid and CHIP.   
 
Notwithstanding the policy described above, for individuals whose financial eligibility for 
Medicaid is not determined using MAGI rules, financial eligibility is based on the methodologies 
applied by the Social Security Administration (SSA) in determining eligibility for Supplemental 
Security Income (SSI).  Thus, the post-Windsor SSI marriage recognition policy that will be 
announced by the SSA will be relevant to SSI-related eligibility groups.  The Centers for 
Medicare & Medicaid Services (CMS) will issue additional guidance once the SSA announces 
its post-Windsor SSI marriage recognition policy.  Below, we provide some interim guidance 
pending the announcement by the SSA. 
 
We note that, today, CMS is also releasing related policy guidance from the Center for 
Consumer Information and Insurance Oversight (CCIIO).  That guidance (available at: 
http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/marketplace-
guidance-on-irs-2013-17.pdf ) acknowledges that the premium tax credit (PTC) eligibility rules 
under section 36B of the Internal Revenue Code will treat same-sex spouses in the same manner 
as opposite-sex spouses and that therefore eligibility rules with respect to advance payments of 
the premium tax credit (APTC) and cost-sharing reductions (CSR) will do the same.  
 
Marital Considerations in Medicaid and CHIP  
 
The marriage recognition policy described in this guidance applies to recognition of marriages 
throughout the Medicaid and CHIP programs.  This guidance focuses in particular on the 
implications of this policy for eligibility for these programs and applies regardless of whether or 
not states have undertaken the new adult group eligibility expansion under the Affordable Care 
Act.  Because Medicaid and CHIP eligibility policies are closely intertwined with income 
methodologies used by other programs  the methodologies used by the IRS for purposes of 
eligibility for the PTC, and the methodologies used by the SSA in determining eligibility for SSI 
 this guidance describes in particular the manner in which state Medicaid and CHIP eligibility 
decisions are affected by those methodologies.      
 
MAGI-Based Eligibility Determinations 
 
For coverage starting on or after January 1, 2014, eligibility determinations for most individuals 
under Medicaid and all individuals under CHIP will be based on MAGI and household income, 
as determined in accordance with section 1902(e)(14) of the Act, implemented in regulations at 
42 CFR 435.603 and 457.315.  Eligibility for APTC and CSR associated with enrollment in a 
qualified health plan through a Health Insurance Marketplace will also be determined using 
MAGI and household income, as those terms are defined in section 36B(d)(2) of the Internal 
Revenue Code, implemented in regulations at 26 CFR 1.36B.  In order to create a seamless 
eligibility and enrollment system across insurance affordability programs, and for administrative 
simplification, the Affordable Care Act generally aligns the methodologies for determining 
income eligibility for Medicaid and CHIP with the methodologies for determining income 
eligibility for the PTC, as well as APTC and CSR.   
    Page 3  State Health Official and State Medicaid Director 
 
Following the Windsor decision, the IRS, on August 29, 2013, issued Internal Revenue Ruling 
2013-17 (Ruling), which interprets marriage-related terms in the Internal Revenue Code for 
federal tax purposes, including determination of a taxpayers MAGI and household income for 
purposes of determining eligibility for the PTC.  The Ruling provides that (1) same-sex couples 
who are lawfully married will be recognized as spouses for federal tax purposes; and (2) that a 
same-sex couple will be considered lawfully married so long as the marriage is valid under the 
laws of the jurisdiction where it was entered into, regardless of where the same-sex spouses live.  
As a result, a same-sex couple lawfully married in any jurisdiction will be permitted to file a 
joint federal tax return, regardless of whether the state in which the couple live recognizes same-
sex marriages.  This means that, under the Ruling, the IRS will treat same-sex spouses on the 
same terms as opposite-sex spouses for purposes of determining eligibility for the PTC.   
 
As described in more detail in concurrent CCIIO Marketplace guidance, eligibility 
determinations by a Marketplace with respect to APTC and CSR are tied by statute to eligibility 
rules for the PTC under section 36B of the Internal Revenue Code, as implemented by the IRS 
through regulations and guidance.  As discussed above, for federal tax purposes, these eligibility 
rules consider a couple to be lawfully married so long as the jurisdiction in which the marriage 
was celebrated or the state in which the couple reside recognizes the marriage as valid.  
 
Consistency among PTC, APTC, CSR, Medicaid, and CHIP eligibility methodologies (with 
respect to MAGI-based eligibility groups) furthers program objectives, and it is important that 
there are no federal barriers to states adopting such a consistent approach.  Thus, to promote 
coordination between PTC/APTC/CSR eligibility and Medicaid/CHIP eligibility for MAGI 
populations and to further the HHS policy of treating same-sex marriages on the same terms as 
opposite-sex marriages, to the greatest extent possible, we permit and encourage states to 
recognize same sex marriages that are valid in the jurisdiction where the marriage was 
celebrated.  However, we interpret section 1902(e)(14)(G) to permit a state to choose not to 
recognize a same-sex marriage celebrated in another jurisdiction, if the state does not consider 
the couple to be married under its own laws.  Under this approach, a state is permitted and 
encouraged, but not required, to recognize same-sex couples who are legally married under the 
law of the jurisdiction in which the marriage was celebrated as spouses for purposes of Medicaid 
and CHIP.  States that do not recognize same-sex marriages are thus free to adopt a different 
marriage recognition policy for Medicaid and CHIP purposes. 
 
We note that, because states may opt not to recognize same-sex marriages for purposes of 
Medicaid and CHIP, and because, as set forth in concurrent CCIIO Marketplace guidance, 
APTC/CSR eligibility methodology will follow PTC eligibility methodology, a narrow benefit 
eligibility gap could arise in states that do not recognize same-sex marriages.  We are currently 
considering this issue. As part of that consideration, we will consult with the states. 
 
Non-MAGI Based Eligibility Determinations 
   
Some populations are excepted from application of MAGI-based methodologies in determining 
financial eligibility for Medicaid, including (1) individuals whose eligibility for Medicaid does 
not require a determination of income by the state Medicaid agency, including individuals 
eligible for, or deemed eligible for, SSI; individuals eligible for title IV-E federal foster care or 
adoption assistance or guardianship payments; and individuals screened as needing treatment for 
breast or cervical cancer under the Centers for Disease Control and Prevention breast and  Page 4  State Health Official and State Medicaid Director 
 
cervical cancer early detection program; (2) individuals who are being determined eligible for 
Medicaid under an eligibility category for which being blind, disabled, or elderly is a condition 
of eligibility, and (3) individuals being evaluated for Medicaid eligibility under an eligibility 
category that covers long term care services and support (LTSS) needed by an individual, but 
which are not covered under a MAGI-based eligibility group for which the individual may be 
eligible.  The exceptions to application of MAGI-based methodologies are codified at 42 CFR 
435.603(j).   
 
As noted above, SSAs post-Windsor SSI marriage policy is forthcoming.  As such, while we are 
unable to provide comprehensive guidance for states relating to the impact of the Windsor 
decision on the Medicaid eligibility of MAGI-exempt populations at this time, we can remind 
states of some basic principles.  First, when Medicaid eligibility is based on eligibility for 
another benefit program, states will not need to make any determination concerning marital 
status; Medicaid eligibility will continue to be based on the determination of eligibility for the 
applicable benefits.  For example, in states in which Medicaid eligibility is directly tied to 
eligibility for SSI  i.e., in states that have an agreement with the SSA under section 1634 of the 
Act to determine Medicaid eligibility for SSI recipients (1634 states) as well as so-called criteria 
states what matters to the state for purposes of determining an individual eligible for Medicaid 
is that the SSA has determined the individual eligible for SSI (whether it does or does not 
recognize a same-sex marriage in the course of doing so).  Eligibility is derived based on receipt 
of SSI.  
 
Second, in so-called 209(b) states, which exercise flexibility under section 1902(f) of the Act, 
mandatory eligibility for aged, blind, and disabled individuals is generally based on SSI 
eligibility rules, but is not directly tied to eligibility for SSI, because the state may apply one or 
more eligibility rules that is more restrictive than that applied by the SSA in determining SSI 
eligibility, so long as the more restrictive method was applied under the Medicaid state plan in 
effect on January 1, 1972.  Once the SSA announces its post-Windsor SSI marriage recognition 
policy, CMS will provide additional guidance for 209(b) states.   
 
Third, the Medicaid statute provides that, with respect to determining eligibility under other 
groups for aged, blind and disabled individuals, SSI methodologies will be applied, consistent 
with sections 1902(a)(17) and 1902(r)(2) of the Act.  CMS will provide additional guidance on 
these optional SSI-related eligibility groups once the SSA announces its post-Windsor SSI 
marriage recognition policy.    
 
Finally, eligibility for LTSS under Medicaid and the post-eligibility rules that apply in 
determining the amount of medical assistance available for LTSS may also be affected in some 
ways by SSAs post-Windsor SSI marriage recognition policy, and we will also provide 
additional guidance on this topic once the SSA announces its policy.    
 
Civil Unions and Domestic Partnerships 
 
There is no provision of the Medicaid and CHIP statutes that recognizes civil unions or domestic 
partnerships.  Moreover, in IRS Revenue Ruling 2013-17, such relationships are not viewed as 
marriages for federal tax purposes, including for purposes of determination of MAGI.  
Consistent with this guidance, a marriage is recognized for Medicaid and CHIP purposes if (it is 
legally valid under applicable law.  Thus, if a state or territory recognizes a civil union or  Page 5  State Health Official and State Medicaid Director 
 
domestic partnership as a marriage, that marital status is recognized under the Medicaid and 
CHIP programs, consistent with this guidance.   
 
Implementation Considerations 
 
States may start recognizing same-sex marriages in the administration of their Medicaid and 
CHIP programs immediately.  We understand, however, the operational challenges that they 
might face in doing so, given the necessary revisions to state systems and consumer materials.  
Thus, states must implement this guidance as soon as reasonably practicable and implement 
interim workarounds where reasonably possible. We will work with states to develop acceptable 
mitigation plans to achieve a reasonable timeframe for assuring compliance with this guidance.   
 
CMS will provide state plan amendment preprints for Medicaid and CHIP, which states will be 
required to complete, indicating whether or not the state recognizes same-sex marriages for 
purposes of Medicaid and CHIP.  Guidance on this process is forthcoming.  States may 
implement their same-sex marriage recognition policy prior to submitting a state plan 
amendment to CMS.    
 
If you have questions about this guidance, please contact either Sarah deLone at 410-786-0615 
or Sarah.deLone2@cms.hhs.gov, or your SOTA state lead. 
 
Sincerely, 
 
/s/ 
 
            Cindy Mann 
            Director 
 
 
cc:   
 
CMS Regional Administrators 
 
CMS Associate Regional Administrators 
Division of Medicaid and Childrens Health Operations 
 
Matt Salo 
Executive Director 
National Association of Medicaid Directors 
 
Alan R. Weil, J.D., M.P.P. 
Executive Director 
National Academy for State Health Policy 
 
Ron Smith 
Director of Legislative Affairs 
American Public Human Services Association 
  Page 6  State Health Official and State Medicaid Director 
 
Joy Wilson 
Director, Health Committee 
National Conference of State Legislatures 
 
Heather E. Hogsett 
Director, Committee on Health & Homeland Security 
National Governors Association 
 
Debra Miller 
Director for Health Policy 
Council of State Governments 
 
Christopher Gould 
Director, Government Relations 
Association of State and Territorial Health Officials