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to Section One | to Arts & Entertainment
posted Friday, November 16, 2012 - Volume 40 Issue 46
Getting what you deserve
Section One
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Getting what you deserve

Health insurance and pensions after you get married

by Mike Andrew - SGN Staff Writer

When Washington state voters approved Referendum 74, they intended to give loving, committed Gay and Lesbian couples all the rights that opposite-sex spouses enjoy, including the ability to provide health care and a secure retirement for our partners.

Unfortunately, rules governing health insurance and pensions are complicated, with some plans governed by the state's newly approved Marriage Equality Act and others under federal laws that do not necessarily recognize same-sex marriages.

According to Washington Insurance Commissioner Mike Kreidler's office, all insurance plans regulated by the state are already required to offer same-sex partners the same benefits they offer opposite-sex spouses.

'We don't anticipate any problems [with Gay and Lesbian married couples],' Kreidler's spokesperson Stephanie Marquis told SGN.

'When the domestic partner law passed [in 2009 as a result of Referendum 71], all state-regulated insurance plans were required to include coverage for registered domestic partners if the policies covered spouses. Under the new same-sex marriage law, same-sex couples would be treated the same as opposite-sex couples.'

STATE VS. FEDERAL LAW
Marquis was quick to add that many insurance plans are not regulated by state law, and those might present some challenges to newly married Gay and Lesbian couples.

'One thing to point out is that our office only oversees state-regulated insurance plans - not ERISA plans,' she cautioned. 'Those are overseen by the U.S. Department of Labor. I'm not certain how the federal government will treat spouses under our new state law.'

ERISA - the Employee Retirement Income Security Act of 1974 - is a federal law enacted to regulate employee benefit plans, including health insurance and pensions. Many union benefits plans are administered under ERISA rather than state laws.

Because ERISA is a federal law, and DOMA forbids the federal government from recognizing same-sex marriages, the fact that many insurance and pension plans fall under ERISA adds an element of uncertainty for Gay and Lesbian spouses.

Nevertheless, the U.S. Labor Department, which administers ERISA, says that it has already developed policies to cover same-sex spouses.

'Because several states have already passed [marriage equality] laws we have developed some guidelines,' Labor Department spokesperson Deanne Amaden told SGN.

'ERISA does not require group health plans to cover same-sex spouses of employees or prohibit plans from doing so,' she explained.

'If the plan's benefits are provided under an insurance policy, state insurance law may determine whether same-sex spouses must be covered... If the plan says that it covers spouses or legal spouses, that term is likely to be interpreted against the backdrop of state law. As a consequence, if the applicable state law treats a couple as legally married, the spouse would likely be covered under that plan provision.'

SELF-INSURED EXEMPT
One important exception is that 'self-insured plans are not subject to state insurance laws,' Amaden added.

A self-insured plan is one whereby employers directly assume the major cost of health care for their employees, rather than buying a group policy from an insurance company. Some self-insured employers contract with insurance companies or third-party administrators for claims processing and other administrative services, while other self-insured plans are completely self-administered.

Federal employees are also an exception, since the definition of 'spouse' in their benefits package follows DOMA in excluding same-sex spouses, even if they are legally married in the state where they reside. This issue is at the core of several DOMA cases now before the U.S. Supreme Court, and may be legally resolved before the end of the court's current term.

WHERE TO GET HELP
If you or your newly married husband or wife are unfairly denied health coverage or pension benefits, there is legal recourse. If you are not a federal employee, the first thing to do is to determine if your benefit plan is state-regulated, ERISA-regulated, or if your employer self-insures.

If your plan is state-regulated, a complaint to the Washington State Insurance Commissioner is in order. If your plan falls under ERISA, a call to the U.S. Department of Labor might be helpful.

At some point, you might need to take legal action to get health insurance or pension benefits for you or your spouse. The Washington Attorney General's Office declined to weigh in on how that legal action should go forward.

'One of the spelled-out rules for our department is that we have to defend initiatives and referenda passed by the people and all laws passed by the legislature,' AG spokesperson Dan Sytman told SGN. 'I'm hesitant to get into analysis of legal remedies because we might end up litigating this.'

If you do need to hire an attorney to pursue a claim against an insurance company or an employer, QLaw has a directory of 170 lawyers on their website. Each attorney lists his or her specialty, so you will be able to find one familiar with employment and benefits cases.

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