This Office of General Counsel issued the following opinion on May 19, 2004, representing the position of the New York State Insurance Department.

Re: Same Sex Marriage, Civil Union and Domestic Partnerships

Questions Presented:

1. If New York recognizes same sex marriages and civil unions lawfully entered into in other jurisdictions, will proof of financial interdependence still remain a criterion for domestic partners?

2. May New York require insurers to offer health insurance coverage under group accident and health plans to a member’s spouse of a same sex marriage?

Conclusions:

1. Yes. Recognition of same sex marriages and civil unions lawfully entered into in other jurisdictions will have no impact on the criteria applied to individuals seeking coverage as domestic partners.

2. No. There is no authority under the New York Insurance Law to require insurers to offer health insurance coverage under group accident and health plans to a member's spouse of either a heterosexual or a same sex marriage.

Facts:

No facts were provided. The inquiry is general in nature.

Analysis:

Question 1:

N.Y. Ins. Law § 3216(c) (McKinney Supp. 2004), which pertains to individual accident & health insurance policies issued by commercial insurers, provides with respect to such policies:

(c) 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. Ins. Law § 3216(a)(3) (McKinney Supp.2004), which pertains to individual accident & health insurance policies issued by commercial insurers, defines "family" as including "‘husband, wife, or dependent children, or any other person dependent upon the policyholder."1

N.Y. Ins. Law § 4235(f) (McKinney Supp. 2004), which pertains to group accident & health insurance policies issued by commercial insurers, provides with respect to such policy:

Any policy of group accident, group health or group accident and health insurance may include provisions for the payment by the insurer of benefits for expenses incurred -  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.

N.Y. Ins. Law § 4305(c)(1) (McKinney Supp. 2004), which pertains to group contracts issued by not-for-profit health insurers, has a similar provision. Pursuant to N.Y. Pub. Health Law § 4406(1) (McKinney 2000), N.Y. Ins. Law § 4305(c)(1) is also applicable to group contracts issued by Health Maintenance Organizations.

N.Y. Ins. Law § 4304(d)(1) (McKinney Supp. 2004), which pertains to individual contracts issued by not-for-profit health insurers and HMOs, however, provides:

No contract issued pursuant to this section shall entitle more than one person to benefits except that a contract issued and marked as a "family contract" may provide that benefits will be furnished to a husband and wife, or husband, wife and their dependent child or children.

Where coverage may be extended to those "dependent" or "chiefly dependent" upon the insured (i.e., in the case of group policies written by a commercial insurer, a non-profit insurer or an HMO, or in the case of individual policies written by a commercial insurer), the Department would allow coverage for non-married domestic partners able to demonstrate the requisite dependency.2 Dependence includes both unilateral dependency and mutual interdependence, which may be evidenced by a nexus of factors, such as common ownership of property, common householding, shared budgeting or length of relationship. The registration of a domestic partnership, such as is authorized in New York City, New York City Ad. Code § 3-240 et seq. (1999) would constitute strong evidence of mutual interdependence.

The fact that New York will recognize same sex marriages and civil unions lawfully entered into in another jurisdiction will have no impact on the criterion applied to individuals seeking coverage as domestic partners.

Question 2:

With respect to group accident and health plans, an employer is not required to include coverage for spouses, either heterosexual or same sex, or for domestic partners in its benefit plan. Even if the employer-policyholder requests such coverage, because these coverages are permissive rather than mandatory, the insurer has the option of whether or not to offer them. The insurer is free to offer policies that cover the employee only, the employee and spouse only, etc. An insurer that offers coverage to some dependents of the insured is not obligated to offer it to all potential classes of dependents, provided that the distinction is not based on unlawful discrimination.

However, with respect to small group health insurance, the Department has interpreted N.Y. Comp. Codes R. & Regs. tit. 11, § 360.3 (1998) (Reg. 145) as requiring an insurer that has provided domestic partner coverage to a small group to provide it to any other eligible small group that applies for it.

For further information you may contact Supervisory Attorney Joan Siegel at the New York City Office.

1 The Court of Appeals in Braschi v. Stahl Associates, 74 N.Y.2d 201, 544 N.Y.S.2d 784 (1989), concluded that family should not be restricted to those people who have formalized their relationship.

2  Because N.Y. Ins. Law § 4304(d)(1) limits coverage to husband, wife, dependent children or any child not over nineteen years of age, coverage issued pursuant to this section may not be extended to domestic partners.