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

George E. Pataki
Governor

Howard Mills
Superintendent

The Office of General Counsel issued the following opinion on November 15, 2006 representing the position of the New York State Insurance Department.

Health Insurance Coverage for the Children of Employees

Question Presented:

May an employer who provides health insurance to its employees and their families through an insurer refuse to allow its employees to cover their children who were born out of wedlock under a group accident and health policy?

Conclusion:

No. N.Y. Ins. Law § 2608-a (McKinney 2006) specifically prohibits discrimination against children who were born out of wedlock.

Facts:

The inquirer states that an employer who provides health insurance to its employees and their families through an insurer will not allow its employees to cover their children who were born out of wedlock under a group accident and health policy.

Analysis:

N.Y. Ins. Law § 4235 (McKinney 2006) applies to group accident and health insurance policies issued by insurers in this state and provides as follows:

(f)(1) 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 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… (emphasis added).

Section 4235 permits a group insurance policy to provide coverage to an employee’s spouse, children and other persons chiefly dependent on the employee for support and maintenance.

N.Y. Ins. Law § 2608-a (McKinney 2006) states in pertinent part:

(a) No employer, health insurer, group health plan, health maintenance organization, or other entity offering medical benefits whether by insurance or otherwise, including an employee retirement income security act or service benefit plan, shall deny enrollment of a child under the health coverage of the child's parent on the ground that:

(i) the child was born out of wedlock…

Thus, section 2608-a specifically prohibits any employer or insurer from denying coverage to the children of employees on the ground that the children were born out of wedlock.

This opinion is limited to the provisions of the New York Insurance Law. The federal Employee Retirement and Income Security Act (ERISA, 29 U.S.C. §§1001-1461) may also be applicable to this type of inquiry. It may be appropriate to request an opinion of the United States Department of Labor regarding this topic.

For further information you may contact Associate Attorney Pascale Jean-Baptiste at the New York City Office.