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Eric R. Dinallo   Superintendent of Insurance  25 Beaver Street  New York, N.Y. 10004

ISSUED 11/21/2008 FOR IMMEDIATE RELEASE

DINALLO: INSURERS MUST TREAT ALL MARRIED COUPLES EQUALLY

Insurance companies must treat same-sex couples in New York who were legally married outside the State the same as any other validly married couples, irrespective of the sex of the spouses, Insurance Superintendent Eric Dinallo announced today in a bulletin to all Department licensees. The bulletin, known as a Circular Letter, says that same-sex couples who enter into valid marriages outside of New York must be treated as married people for the purposes of the New York Insurance Law, including for health insurance.

“Insurance is an essential part of our planning for daily life. We expect insurance companies to provide the same rights and benefits to all legally married couples, regardless of the sex of the spouses,” Dinallo said. “As Governor David Paterson has explained, this is consistent with the position the State historically has taken with respect to marriages conducted in jurisdictions outside of the State of New York.”

The Circular Letter is based on an opinion issued by the Department’s Office of General Counsel (“OGC”) after a careful legal review that began in early spring. Both consumers and industry triggered the review by asking the Department for guidance about the rights under the New York Insurance Law of same-sex couples whose marriages were legally performed in other jurisdictions. Those inquiries came shortly after an unanimous February 1, 2008 decision by the Supreme Court of the State of New York, Appellate Division, Fourth Department in Martinez v. Monroe Community College, 50 A.D.3d 189, 850 N.Y.S.2d 740 (4th Dep’t 2008), leave to appeal denied, 10 N.Y. 3d 856 (2008), which held that a woman’s Canadian marriage to her same-sex partner is entitled to recognition in New York State, and that her partner therefore is entitled to the health care benefits offered to any other spouse.

On May 6, 2008, New York’s highest court, the Court of Appeals, refused to hear an appeal from Monroe County. All lower courts in New York are bound to follow Martinez as controlling precedent.

Guided by Martinez and several decisions from lower New York courts, the OGC opinion concludes that same-sex couples in marriages legally performed outside of New York are entitled to the same rights under the Insurance Law as any other legally married couples. Further, an insurer’s refusal to extend health insurance or other coverage equally to all couples may constitute unfair discrimination and/or an unfair act or practice that could subject it to discipline imposed pursuant to the New York Insurance Law.

The Department’s legal determination covers all Department licensees, and encompasses virtually all insurance products, such as life, disability, long term care, and health insurance. Some employer self-funded group health insurance plans that are regulated by the federal government under the Employee Retirement Income Security Act (ERISA) may not be affected by today’s Circular Letter.

The Department’s interpretation of the Insurance Law also is consistent with a memorandum dated May 14, 2008 from the Counsel to Governor David A. Paterson, directing all state agencies to review their policy statements, regulations, and statutes to ensure that such laws are construed in a manner, consonant with Martinez, so as to encompass marriages of same-sex couples legally performed in other jurisdictions.

The legality of that memorandum was upheld in a decision issued September 2, 2008 by Justice Lucy Billings of the Supreme Court of the State of New York in the Bronx. Justice Billings dismissed a suit filed by the Alliance Defense Fund on behalf of various state lawmakers challenging Governor Paterson’s authority to issue the directive.

Consumers with questions about whether a group health plan is subject to State regulation should confer with their benefits administrators. Any consumer who believes he or she is being discriminated against by any insurer regulated by the State, or who has other insurance questions, may obtain assistance by calling the Insurance Department’s Consumer Services Hotline on business days between 8:30 a.m. and 4:30 p.m. at 1-800-342-3736, or by visiting the Department’s website at www.ins.state.ny.us.

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