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

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on February 26, 2003, representing the position of the New York State Insurance Department.

RE: Health Insurance Coverage of Minor Child of Divorced Parents.

Question Presented:

Did the insurer insuring Mr. A’s son’s stepfather act properly in claiming that they do not have to provide coverage for his stepson?

Conclusion:

Whether the insurer is acting properly is dependent upon the coverage purchased by the policyholder.

Facts:

Mr. A’s former wife has remarried and Mr. A’s son lives with his mother and her present husband, who is covered under a group health insurance policy presumably providing family coverage. Mr. A’s former wife and her present husband claim the child as a dependent on their income tax submissions. There is no court order requiring either parent to provide the child with health insurance. Mr. A’s former wife’s birthday falls earlier in the year than Mr. A’s birthday.

The insurer of Mr. A’s former wife’s present husband has refused to provide coverage for Mr. A’s son.

Analysis:

Mr. A cites portions of a series of tests that are set forth in New York Comp. Codes R. & Regs. tit. 11, § 52.23 (1995) with regard to coordination of benefits. The birthday rule, N.Y. Comp. Codes R. & Regs. tit. 11, § 52.23(n)(3)(ii)(a), would, in the situation Mr. A presents, be inapplicable. The rule that would probably govern Mr. A’s situation, if two or more policies provide coverage, is N.Y. Comp. Codes R. & Regs. tit. 11, § 52.23(n)(iii):

if two or more plans cover a person as a dependent child of divorced or separated parents, benefits for the child are determined in this order: (a) first, the plan of the parent with custody of the child; (b) then, the plan of the spouse of the parent with custody of the child; (c) finally, the plan of the parent not having custody of the child; and (d) if the specific terms of a court decree state that one of the parents is responsible for the health care expenses of the child, and the entity obligated to pay or provide the benefits of the plan of that parent has actual knowledge of those terms, the benefits of that plan are determined first. This paragraph does not apply with respect to any claim determination period or plan year during which any benefits are actually paid or provided before the entity has that actual knowledge;

The coordination of benefits rules are relevant only when coverage exists and do not serve to confer coverage. Whether coverage exists is determined by the insurance policy or contract, which is issued in accordance with the New York Insurance Law (McKinney 2000 and 2003 Supplement).

New York Insurance Law § 4235(c)(1)(A) (McKinney 2000 and 2003 Supplement) authorizes:

A policy issued to an employer or to a trustee or trustees of a fund established by an employer, which employer or trustee or trustees shall be deemed the policyholder, insuring with or without evidence of insurability satisfactory to the insurer, employees of such employer, and insuring, except as hereinafter provided, all of such employees or all of any class or classes thereof determined by conditions pertaining to the employment or a combination of such conditions and conditions pertaining to the family status of the employee, for insurance coverage on each person insured based upon some plan which will preclude individual selection. . . . .

New York Insurance Law § 4235(f)(1) provides:

Any policy of . . . group health or group accident and health insurance may include provisions for the payment by the insurer of benefits for expenses incurred on account of hospital, medical or surgical care or physical and occupational therapy by licensed physical and occupational therapists upon the prescription or referral of a physician for the employee or other member of the insured group, his spouse, his child or children, or other persons chiefly dependent upon him for support and maintenance . . . .

While most employers have the insurer include family coverage when they purchase a group health insurance policy or contract, such coverage is not required under the New York Insurance Law, nor is it required under the Employee Retirement Income Security Act, 29 U.S.C.A. § 1001 et seq. (West 1999), the Federal statute regulating employee welfare benefit plans. An employer may, therefore, opt to not provide family coverage.

The term "child" as used in New York Insurance Law § 4235 is not a defined term in the New York Insurance Law. However, N.Y. Comp. Codes R. & Regs. tit. 11, § 52.18(e)(2) (2002) provides:

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.

Whether a person is dependent is a question of fact. One of the factors that may be considered is whether the individual is a dependent for the purposes of Federal income tax. Internal Revenue Code § 152(a) (West 2002) provides:

For purposes of this subtitle, the term ‘dependent means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer: . . . (2) A stepson or stepdaughter of the taxpayer . . . .

If the stepfather’s employer has opted to provide family coverage without any restrictions, the insurer covering Mr. A’s former wife’s present husband should cover Mr. A’s son as one who is dependent upon the insured individual for support and maintenance and, pursuant to N.Y. Comp. Codes R. & Regs. tit. 11, § 52.23(n)(iii)(b), its coverage should be primary over any coverage Mr. A may have. Since Mr. A did not indicate whether the policy covering Mr. A’s former wife’s present husband provides family coverage, this Department cannot provide a more detailed or specific answer.

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