DEPARTMENT OF HEALTH & HUMAN SERVICES 
Centers for Medicare & Medicaid Services 
7500 Security Boulevard, Mail Stop S2-26-12 
Baltimore, Maryland   21244-1850 
SMD# 14-005 
May 30, 2014 
Re:  United States v. Windsor and Non-MAGI 
Populations 
Dear State Health Official: 
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.  
Because Section 3 of DOMA no longer controls the definition of marriage or spouse under the 
federal framework for state Medicaid and Childrens Health Insurance Programs (CHIP), DOMA 
is no longer a bar to states recognizing same-sex marriages in Medicaid and CHIP.  The Centers 
for Medicare & Medicaid Services (CMS) issued guidance on September 27, 2013 regarding 
marriage recognition for populations whose eligibility is determined on the basis of modified 
adjusted gross income (MAGI) (available at http://www.medicaid.gov/Federal-Policy-
Guidance/downloads/SHO-13-006.pdf).   
The purpose of this further guidance is to advise you of the implications of the Windsor decision 
for populations such as the elderly and people with disabilities whose eligibility for Medicaid is 
not determined on the basis of MAGI methodologies.  
As explained in more detail below, the marriage recognition policy announced in our September 
2013 guidance also will apply to non-MAGI populations.  Thus, for populations whose Medicaid 
eligibility is determined using Supplemental Security Income (SSI) methodologies (but who are 
not necessarily eligible for SSI), while we believe that it is appropriate to recognize same-sex 
marriages that were celebrated in accordance with the laws of any state, territory, or foreign 
jurisdiction in which they took place, in view of the unique federal-state relationship that 
characterizes the Medicaid and CHIP programs, states may apply their own laws in deciding 
whether a couple is lawfully married.   
However, in most states, Medicaid eligibility is still mandatory for all SSI recipients, including 
those in same-sex marriages, as explained more fully later in this guidance.  This policy applies 
for eligibility purposes as well as for other purposes in the administration of the Medicaid 
program, such as spousal impoverishment, post-eligibility treatment-of-income, asset transfers, 
and estate recovery rules to the extent such rules can be applied under the states laws.  Once a 
state elects its marriage recognition policy, that election shall apply consistently across the 
program (i.e., for both eligibility and post-eligibility purposes).  However, as noted below, states 
have flexibility under previously announced policy to apply undue hardship waivers for all 
Medicaid recipients, regardless of sexual orientation, with respect to the application of liens, 
transfers of assets, and estate recovery rules.   Page 2  State Medicaid Director 
Background 
The Affordable Care Act created an eligibility framework designed to maximize consistency in 
income determinations among Medicaid, CHIP, and Marketplace plans in order to maximize 
coverage of individuals eligible for coverage through federal health care programs.  Therefore, 
CMS considered such consistency when articulating our post-Windsor marriage recognition 
policies.  Following the Windsor decision, the Internal Revenue Service (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 premium tax credit 
(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 same-sex couples 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 lives 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.  Subsequently, CCIIO Marketplace guidance 
(available at: http://www.cms.gov/CCIIO/Resources/Regulations-and-
Guidance/Downloads/marketplace-guidance-on-irs-2013-17.pdf), clarified that eligibility 
determinations by a Marketplace with respect to advance premium tax credits (APTCs) and cost-
sharing reductions (CSRs) 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.  Thus, 
Marketplace rules will treat same-sex spouses in the same manner as opposite-sex spouses and, 
therefore, eligibility rules with respect to advance payments of the APTC and CSR will do the 
same. 
In our September 27, 2013 guidance we explained that, in view of the unique federal-state 
relationship that characterizes the Medicaid and CHIP programs, we interpreted section 
1902(e)(14)(G) of the Social Security Act (the Act), which incorporates section 36B(d)(2) of the 
Internal Revenue Code, 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, even 
though both the IRS and the Marketplace have 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.  That is, CMS is permitting states and territories to adopt a different 
same-sex marriage recognition policy than the IRS and the Marketplace if their laws do not 
recognize same-sex marriages.  Under this approach, with respect to Medicaid and CHIP 
eligibility determinations for populations whose income is determined on the basis of MAGI, 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.   
As described in more detail below, we are now applying the same guidance to an individual 
whose financial eligibility for Medicaid is not determined using MAGI rules but rather is based 
on the methodologies applied by the Social Security Administration (SSA) in determining 
eligibility for SSI.    Page 3  State Medicaid Director 
Non-MAGI Based Eligibility Determinations 
Longstanding CMS policy has permitted states to define marriage in accordance with state law 
for purposes of determining financial eligibility and the extent of benefits for aged, blind and 
disabled populations.  Under the Windsor decision, states also have the authority to recognize 
same-sex marriages valid in the jurisdiction where the marriage was entered into.  Therefore, 
CMS is issuing this guidance to affirm that state Medicaid agencies will have the same discretion 
in determining eligibility of individuals in same-sex marriages whose eligibility is based on SSI 
methodologies as they do for similarly situated individuals whose eligibility is based on MAGI, 
as expressed in our September 27, 2013 letter.  Thus, the approach described in our September 
27, 2013 guidance applies to non-MAGI as well as MAGI populations.  For both MAGI and 
non-MAGI populations, while we believe that it is appropriate to recognize same-sex marriages 
that were celebrated in accordance with the laws of any state, territory, or foreign jurisdiction, in 
view of the unique federal-state relationship that characterizes the Medicaid and CHIP programs, 
states may apply their own laws in deciding whether a couple is lawfully married.  However, as 
detailed below, in states in which Medicaid eligibility is directly tied to receipt of SSI, Medicaid 
eligibility remains mandatory for all SSI recipients, including any who are in same-sex marriages 
and are deemed married in their SSI eligibility determinations based on SSIs post-Windsor 
policy.1 
As we explained in our previous guidance, 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, such as 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 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).  
1 SSAs initial post-Windsor guidance instructs SSA field offices to treat individuals in a same-sex marriage as 
married for SSI eligibility purposes if they are legally married under the laws of the state where the SSI claimant and 
his or her same-sex spouse have their permanent home. In one situation  when an SSI claimant or the SSI 
claimants same-sex spouse is receiving Title II spousal benefits based on the other spouses earnings record  SSIs 
guidance also requires that an SSI claimant in a same-sex marriage be treated as married for SSI eligibility purposes 
even if the individual and his or her spouse are living in a state that does not afford legal recognition to such 
marriages. The SSAs Policy Operations Manual System (POMS) guidance, GN 00210.800 Same-Sex Marriages - 
Supplemental Security Income, published on January 9, 2014, is available at: 
https://secure.ssa.gov/apps10/poms.nsf/lnx/0200210800. SSA has not yet provided the entirety of its post-Windsor 
guidance, and it has instructed field offices to hold claims, appeals, and post-eligibility actions for situations not 
covered by its instructions until it publishes additional instructions in its POMS.  Page 4  State Medicaid Director 
In general, under the Medicaid statute, for purposes of determining Medicaid eligibility for aged, 
blind and disabled individuals, states are to apply SSI income and resource methodologies, 
consistent with sections 1902(a)(17) and 1902(r)(2) of the Act.  Except as these issues relate to 
determining eligibility for SSI itself, however, states have generally been permitted to make their 
own determinations about family composition and marital relationships that differ from the 
relevant SSI rules.  See, e.g., Memorandum from Director, Center for Medicaid and State 
Operations, to Regional Administrator, Re: Medicaid Eligibility  Policy Governing Family Size 
in Determining Eligibility for Qualified Medicaid Beneficiaries and Specified Low Income 
Beneficiaries (Oct. 2, 1997, available at: https://www.medicaid.gov/sites/default/files/2019-12/
medicaid-eligibilty-memo.pdf); State Medicaid Manual  3260.1 (defining spouse for purpose 
of spousal impoverishment rules as follows:  
Person legally married to another under state law.  Depending on State law, this definition may 
be more restrictive than that used under the SSI program which uses a definition of couples that 
is very close to the definition of common law marriage which is no longer recognized in most 
states. (Emphasis provided.)).  Consistent with that approach, this guidance clarifies that states 
may adopt a definition of spouse for purposes of Medicaid determinations that is based on the 
laws of the state in which the same-sex couple resides and is applying for or receiving Medicaid, 
and may, in addition, recognize marriages valid in the jurisdiction of celebration regardless of 
whether such marriages are generally recognized under state law.  
However, it should be noted that, 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 and so-called criteria states  Medicaid eligibility remains mandatory for all SSI recipients, 
including any who are in same-sex marriages and are deemed married in their SSI eligibility 
determinations based on SSIs post-Windsor policy.  Additionally, so-called 209(b) states, which 
are not required to extend Medicaid to SSI recipients but must exclude SSI payments from an 
applicants countable income, must continue to exclude such payments in the income-eligibility 
determinations of applicants seeking eligibility on the basis of being aged, blind, or disabled, 
regardless of whether the applicant was deemed by SSA to be married by application of SSAs 
post-Windsor policy in the determination of his or her SSI eligibility.  However, if the Medicaid 
applicant in a same-sex marriage in a 209(b) state is an SSI recipient and was deemed married in 
the individuals SSI determination, the state may nevertheless make its own determination of the 
individuals marital status in determining such individuals Medicaid eligibility, consistent with 
the discretion described above.  
Although the approach described here affirms that states have choice in defining their marriage 
recognition policy for non-MAGI as well as MAGI populations, as SSA issues further policy, we 
will examine whether it has implications for SSI-related populations and will provide additional 
guidance as needed. 
Other Spousal Relationships in Medicaid  
To promote efficient administration of the Medicaid program, this guidance will apply to other 
instances in which states must determine spousal relationships, such as spousal impoverishment, 
post-eligibility treatment-of-income, asset transfers, and estate recovery rules. While states have 
flexibility to decide whether or not to recognize same-sex marriages, we note that if a state treats 
a couple as married for eligibility purposes, the state must treat the couple as married for post-
eligibility purposes as well to the extent it is possible in light of the states treatment of the  Page 5  State Medicaid Director 
 
couple under state law.  However, this guidance is not intended to in any way alter the guidance 
we provided states in our June 10, 2011 guidance to State Medicaid Directors (available at  
http://downloads.cms.gov/cmsgov/archived-downloads/SMDL/downloads/SMD11-006.pdf) 
detailing the state plan flexibility available to states to recognize an undue hardship for all 
Medicaid recipients, regardless of sexual orientation, with respect to the application of liens, 
transfers of assets, and estate recovery rules.  In other words, a state may opt not to recognize a 
same sex marriage but nonetheless apply certain protections on the grounds that to do otherwise 
would impose an undue hardship.   
 
With respect to recognition of same-sex marital relationships for purposes of the provision of 
home and community-based services (HCBS) benefits, we note that this guidance applies to any 
provisions of the statute or regulations related to waivers under 1915(c), state plan home and 
community-based services under 1915(i), Community First Choice benefits under 1915(k), or 
home and community-based services provided under 1115 demonstrations, that reference 
spouses or family members.  States with questions about how this guidance would apply in the 
administration of their HCBS programs can consult with CMS staff.     
 
Finally, for some types of Medicaid providers, the Medicare conditions of participation are 
applicable.  Compliance with these conditions of participation, even when reviewed by state 
survey agencies, must be assessed using Medicare policies with respect to recognition of same-
sex marital relationships. 
 
Civil Unions and Domestic Partnerships 
 
As we noted, in our September 27, 2013 guidance, 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.  That said, where a state recognizes a civil 
union or 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.    
 
    Page 6  State Medicaid Director 
 
If you have questions about this guidance, please contact Gene Coffey at 410-786-2234  
(gene.coffey@cms.hhs.gov), or your SOTA team 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 
 
Joy Wilson 
Director, Health Committee 
National Conference of State Legislatures 
 
Debra Miller 
Director for Health Policy 
Council of State Governments 
 
Christopher Gould 
Director, Government Relations 
Association of State and Territorial Health Officials