EBIA Weekly Archives

Insurers Offering Spousal Coverage Must Offer Coverage for Same-Sex Spouses

From the March 20, 2014 EBIA Weekly

[Frequently Asked Question on Coverage of Same-Sex Spouses (March 14, 2014)]

Available at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/frequently-asked-questions-on-coverage-of-same-sex-spouses.pdf

HHS has announced that, beginning with the 2015 plan or policy year, health insurers offering non-grandfathered health coverage for opposite-sex spouses must also offer coverage for same-sex spouses. The announcement, in the form of a single FAQ, clarifies final regulations issued in February 2013 (see our article) that prohibit health insurers offering non-grandfathered group or individual health insurance coverage from employing marketing practices or benefit designs that discriminate on the basis of certain factors, including sexual orientation. The FAQ confirms that insurers must offer coverage to legally married same-sex spouses under the same terms and conditions that apply to opposite-sex spouses, regardless of the jurisdiction in which the policy is offered, sold, issued, in effect, or operated, or where the policyholder resides. [EBIA Comment: As under other provisions of federal law, same-sex spouses will be considered legally married for purposes of this guidance if their marriage was validly entered into in a domestic or foreign jurisdiction that authorizes same-sex marriage. For example, earlier guidance confirmed that married same-sex couples will be treated equally—regardless of where they live—for purposes of determining eligibility for advance payment of premium tax credits for coverage purchased through an Exchange; see our article.] The FAQ does not require an insurer to provide coverage that is inconsistent with a group health plan’s eligibility requirements or interfere with a plan sponsor’s right to define “spouse” as it chooses for purposes of plan eligibility. Instead, it prohibits insurers from declining to offer a plan sponsor (or individual in the individual market) the option to cover same-sex spouses if desired.

EBIA Comment: According to media reports, the FAQ responds to the refusal by some insurers to sell family coverage to married same-sex couples in states that do not recognize same-sex marriage. Because the FAQ applies broadly to insurers offering non-grandfathered health insurance coverage in the group or individual markets, it applies to insurers providing coverage to fully insured employer-sponsored group health plans. The guidance states that the requirement will not be enforced until plan or policy years beginning on or after January 1, 2015 (and pointedly remarks that states are expected to begin enforcement by that date), but encourages insurers to begin implementation immediately. Plan sponsors that may have had difficulty obtaining a group policy with coverage for same-sex spouses may wish to contact insurers about their plans to implement the FAQ. For further information, see EBIA’s HIPAA Portability, Privacy & Security manual at Sections XVIII.B (“Guaranteed-Availability Rules”) and XIX.D (“Guaranteed Availability and Renewability in the Individual Market Under Health Care Reform (Effective January 1, 2014)”). See also EBIA’s Employee Benefits for Domestic Partners at Section V.I.1 (“Impact of the Supreme Court’s Windsor Decision on Premium Tax Credit Eligibility”). And see EBIA’s Health Care Reform manual at Sections XIV.B (“Guaranteed-Availability and Guaranteed-Renewability Rules”) and XXI.B (“Individuals and Employers Eligible for the Exchange”).

Contributing Editors: EBIA Staff.