New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

The Office of General Counsel issued the following informal opinion on September 18, 2002, representing the position of the New York State Insurance Department.

Re: Health Insurance Coverage of Adopted Child

Issue

Will an existing individual health insurance policy automatically cover an adopted child?

Conclusion

Yes, such a policy will automatically provide coverage, provided the insured purchased, or now purchases, family coverage.

Facts

An insured is covered under an individual health insurance policy issued in New York by a Nebraska domiciled health insurer licensed to transact an insurance business in New York, and intends to adopt a child. The insured desires confirmation that the new child will be covered under the existing policy.

Analysis

While it is the position of this Department that a policy form issued in New York continues to be subject to New York law, even after the policyholder has relocated to another jurisdiction, New York Insurance Law § § 3103(b)(1) (McKinney 2000) and 3201(b)(1) (McKinney 2000 & Supp. 2002), if the policyholder converts his or her policy to one issued on a policy form for use in the other jurisdiction, the laws of that jurisdiction would govern. Accordingly, what follows is applicable only if the policy has not been reissued on a Florida policy form.

New York Insurance Law § 3216(c) (McKinney 2000 & Supp. 2002), regulating individual health insurance policies issued by commercial insurers, provides:

No policy of accident and health insurance shall be delivered or issued for delivery to any person in this state unless . . . (3) It purports to insure only one person, except that a policy may insure, originally or by subsequent amendment, members of a family, as defined herein, upon the application of an adult member of the family who shall be deemed the policyholder.

N.Y. Comp. Codes . & Regs. tit. 11, § 52.17(a)(30) & (31) (1999) (Regulation 62) provides:

(30) A family policy shall provide that adopted children and stepchildren dependent upon the insured be eligible for coverage on the same basis as natural children.

(31) A family policy covering a proposed adoptive parent, on whom the child is dependent, shall provide that such child be eligible for coverage on the same basis as a natural child during any waiting period prior to the finalization of the child's adoption.

Family is defined by New York Insurance Law § 3216(a)(3) & (4):

(3) ‘Family’ may include husband, wife, or dependent children, or any other person dependent upon the policyholder.

(4) ‘Dependent children’ includes any children under a specified age which shall not exceed age nineteen except: (A) Any unmarried dependent child, regardless of age, who is incapable of self-sustaining employment by reason of mental illness, developmental disability, or mental retardation . . . or physical handicap and who became so incapable prior to the age at which dependent coverage would otherwise terminate, shall be included in coverage subject to any pre-existing conditions limitation applicable to other dependents. (B) Any unmarried student at an accredited institution of learning may be considered a dependent child until attaining age twenty-three

New York Domestic Relations Law § 110 (McKinney 1999 & Supp. 2002) provides, inter alia, a definition of adoption:

Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person.

If the adoption should take place in Florida, Florida Stat. Ann. § 63.032(10) (West 1997 & Supp. 2001) has a similar definition of adoption.

New York Insurance Law § 3216(c)(4)(C) further provides, with respect to adoption of new born infants:

Any family coverage shall provide that coverage of newborn infants, including newly born infants adopted by the insured or subscriber if such insured or subscriber takes physical custody of the infant upon such infant's release from the hospital and files a petition pursuant to section one hundred fifteen-c of the domestic relations law [Temporary guardianship by adoptive parent] within thirty days of birth; and provided further that no notice of revocation to the adoption has been filed pursuant to section one hundred fifteen-b of the domestic relations law [ Special provisions relating to consents in private-placement adoptions] and consent to the adoption has not been revoked, shall be effective from the moment of birth for injury or sickness including the necessary care and treatment of medically diagnosed congenital defects and birth abnormalities including premature birth, except that in cases of adoption, coverage of the initial hospital stay shall not be required where a natural parent has insurance coverage available for the infant's care. In the case of individual coverage the insurer must also permit the person to whom the policy is issued to elect such coverage of newborn infants from the moment of birth. If notification and/or payment of an additional premium or contribution is required to make coverage effective for a newborn infant, the coverage may provide that such notice and/or payment be made within no less than thirty days of the day of birth to make coverage effective from the moment of birth. This election shall not be required in the case of student insurance.

Accordingly, if the insured purchased, or now purchases, family coverage on a policy still being issued by the insurer, the policy will cover the adopted child.

For further information, you may contact Principal Attorney Alan Rachlin at the New York City Office.