TN 9 (06-14)

GN 00210.705 Same-Sex Marriage – Medicare based on End Stage Renal Disease (ESRD)

A. Introduction to processing claims for Medicare based on End Stage Renal Disease

Because of the Windsor decision, some individuals diagnosed with End Stage Renal Disease (ESRD) who do not otherwise meet fully or currently insured status for eligibility for Medicare may acquire fully or currently insured status using the earnings records of a current, former or deceased same-sex spouse.

IMPORTANT: Review spouse claims and appeals that are on hold for possible processing now. Continue to hold claims as set out in GN 00210.005 when you cannot process the claim using the instructions in this section.

B. Eligibility policy for individuals

An individual must meet all other factors of eligibility before we approve a Medicare claim based on ESRD. For eligibility requirements for Renal Hospital Insurance (R-HI) and Renal Supplementary Medical Insurance (R-SMI) based on ESRD, see HI 00801.191, HI 00801.201 and HI 00801.233.

An individual may be fully insured or currently insured for R-HI and R-SMI by using the earnings record of a current or prior same-sex spouse, when the number holder (NH):

  • was married in a state that permits same-sex marriage,

  • is domiciled at the time of application, or while the claim is pending final determination, in a state that recognizes same-sex marriage, and

  • was married for at least 10 years, if divorced (living or deceased).

For states that permit or recognize same-sex marriage, see list in GN 00210.003.

IMPORTANT: Duration of marriage is only a factor for individuals who are divorced.

All claimants filing for Medicare entitlement based on ESRD must submit an application following HI 00801.196.

C. Procedure for verifying eligibility

In order for an individual to be approved for R-HI and R-SMI, verify eligibility following HI 00801.191, HI 00801.201, GN 00306.001, and take the following steps:

1. Confirm the validity of the same-sex marriage

Determine marital status as set out in GN 00210.002.

2. Confirm the duration requirement

A claimant seeking fully or currently insured status based on the earnings record of a divorced same-sex spouse (living or deceased) must meet the duration of marriage requirements as outlined in HI 00801.201C.2. prior to the adjudication of the claim. If the marriage between the claimant and the NH does not meet the duration requirement, deny the claim.

Claimants who are currently married to a same-sex spouse do not have a duration requirement.

NOTE: Do not consider the date of the Windsor decision in determining the duration of marriage. Rather, rely on the date the couple was married.

D. Processing the claim

Approve all Medicare claims based on ESRD if the claimant meets all eligibility criteria. Process the claim following instructions in HI 00801.235.

E. References

  • GN 00210.005 Holding Claims, Appeals, and Post-Entitlement Actions Involving Same-Sex Marriages or Legal Same-Sex Relationships Other than Marriage

  • GN 00210.002 Same-Sex Marriage - Determining Marital Status for Title II and Medicare Benefits

  • GN 00210.003 Same-Sex Marriage - Dates States and U.S. Territories Permitted or Recognized Same-Sex Marriage

  • GN 01010.815 Request for Legal Opinion

  • HI 00801.191 Requirements for Entitlement to R-HI

  • HI 00801.196 Application Requirement

  • HI 00801.201 R-HI Insured Status

  • HI 00801.233 Medical Evidence of ESRD-Form CMS-2728-U3

  • HI 00801.235 Development of Claims

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GN 00210.705 - Same-Sex Marriage - Medicare based on End Stage Renal Disease (ESRD) - 08/18/2015
Batch run: 08/18/2015