OGC Opinion No. 07-09-27

The Office of General Counsel issued the following opinion on September 26, 2007, representing the position of the New York State Insurance Department.

RE: Health Insurance Coverage for Same-Sex Couples Married Outside of New York State

Question Presented:

Has the Insurance Department amended its regulations to permit or require employers to provide health insurance coverage to same-sex couples married outside of New York State?

Conclusion:

No. The Insurance Department has not amended its regulations to permit or require employers to provide health insurance coverage to same-sex couples married outside of New York State.

Facts:

The inquirer reports that he represents two clients who entered into a same-sex marriage in Quebec, Canada, one of whom teaches in an Ulster County public school in New York. The inquirer states that someone informally told one of the inquirer’s clients that her same-sex spouse is entitled to health insurance coverage as a spouse.

The inquirer also points out that in Funderburke v. Uniondale Union Free School Dist. No. 15, 251 A.D.2d 622, 623 (2d Dep’t 1998), app. denied, 92 N.Y.2d 813 (1998), the court noted Insurance Department regulations that allegedly permit school districts to provide domestic partnership coverage. Specifically, Funderburke states in relevant part that:

The inquirer inquires whether the Insurance Department has amended the regulations referenced in Funderburke to permit or require school districts to extend health insurance coverage to same-sex spouses married outside of New York State.

Analysis:

The inquirer’s inquiry questions whether the Department has amended the regulations referenced in Funderburke. But contrary to the court’s statement in that decision, the Insurance Department never has promulgated any regulation that addresses whether school districts or other employers may purchase health insurance coverage for domestic partners. Given that no such regulations exist, the Department has taken no steps to amend them, either.

The Department has, however, issued opinions stating that while the Insurance Law does not mandate domestic partner coverage, a health insurance policy or contract that extends coverage to those “dependent” or “chiefly dependent” upon the insured (see Insurance Law §§ 3216, 4235, 4304 and 4305) would be permissible so long as the unmarried, domestic partners are able to demonstrate the requisite dependency. See Office of General Counsel (OGC) Opinion 04-05-25 (May 19, 2004) and OGC Opinion 2000-126 (NILS) (Sept. 25, 2000). The Department has interpreted “dependence” to include both unilateral and mutual interdependence, which the insured may evidence by a nexus of factors, including common ownership of property, a common household, shared budgeting, or length of relationship. See OGC Opinion 04-05-25 (May 19, 2004) and OGC Opinion 2000-126 (NILS) (Sept. 25, 2000).

In sum, the substantive issue presented by the inquirer’s inquiry involves both legal and public policy considerations that neither the Legislature nor the courts have conclusively addressed. And to date, the Department has opined only on whether health insurance coverage may be extended to those who are “dependent” or “chiefly dependent” upon the insured.

For further information you may contact Assistant Attorney Joana Lucashuk at the New York City office.