The Office of General Counsel issued the following opinion on January 20, 2005, representing the position of the New York State Insurance Department.

Re: Health Insurance, Domestic Partners


Does New York permit health insurers to cover domestic partners under a group health insurance policy or contact issued to an employer?


Such coverage is permitted, but is not mandated and the decision as to whether such coverage is offered resides with the employer.


No facts are provided.


New York Insurance Law § 4235(c)(1)(A) (McKinney 2000 and 2005 Supplement) authorizes the issuance of a group health insurance policy to employers covering their employees. New York Insurance Law § 4235(f)(1), regulating policies of commercial insurers, provides:

Any policy of . . . group health . . . insurance may include provisions for the payment by the insurer of benefits for expenses incurred on account of hospital, medical or surgical care . . . 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)

New York Insurance Law § 4305(c)(1) (McKinney 2000 and 2005 Supplement), regulating contracts of not-for-profit insurers and all Health Maintenance Organizations, has similar language.

New York does not recognize common law marriage, New York Domestic Relations Law § 11 (McKinney 1999). However, the New York Insurance Law (McKinney 2000 and 2005 Supplement) recognizes a "chiefly dependent" standard. Dependence includes both unilateral dependence and mutual interdependence, which may be evidenced by a nexus of factors, including common ownership of property, common house holding, shared budgeting or length of relationship. The registration of a domestic partnership, such as is authorized by New York City Administrative Code § 3-420 et seq. (1999), would constitute strong evidence of mutual interdependence.

While an insurer may, if requested by the employer, issue a policy covering domestic partners, the employer is not compelled to request such a policy. A refusal by an employer to provide such coverage is not a violation of the New York City Human Rights Law, New York City Administrative Code § 8-101 et seq. (1999). Rios v. Metropolitan Transportation Authority, New York Law Journal December 28, 2004 (Sup. Ct. Richmond County).

Health insurance for Federal employees is provided pursuant to the Federal Employees Health Benefits Act (FEHBA), 5 U.S.C. 8901 et seq. (West 1996 and 2003 Supplement), which is administered by the United States Office of Personnel Management (OPM). Coverage under FEHBA is provided both by insurers, which must, 5 U.S.C.A. § 8902(b) (West 1996), be licensed in all states and the District of Columbia, and by employee organizations on a self-funded basis. Pursuant to FEHBA, 5 U.S.C.A. § 8902(m)(1) (West 1996), the provisions of such coverage is specifically exempt from state law.

Accordingly, while New York would permit an insurer to cover domestic partners, it does not require such coverage by employers and could not require such coverage for Federal employees. It is suggested that the personnel office be consulted to find out what is permitted by OPM under FEHBA coverage.

For further information you may contact Principal Attorney Alan Rachlin at the New York City Office.