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Must a Self-Insured Health Plan Offer HIPAA Special Enrollment to Same-Sex Spouses?



QUESTION: Our company’s self-insured group health plan includes coverage for an employee’s spouse but has traditionally excluded same-sex spouses from eligibility. However, we will soon amend the plan to extend eligibility to same-sex spouses. Are same-sex spouses entitled to HIPAA special enrollment periods?

ANSWER: HIPAA requires group health plans to offer a special enrollment period to eligible employees following specified events, including acquisition of a spouse or dependent through marriage. Employees entitled to a special enrollment period may enroll themselves and any eligible dependents acquired as a result of the marriage. Neither HIPAA nor its implementing regulations define a spouse or dependent for purposes of special enrollment. Instead, the group health plan’s eligibility definitions determine whether a spouse or dependent is eligible for special enrollment. Thus, a marriage will trigger HIPAA special enrollment rights for a spouse (same-sex or different-sex) only if the spouse is otherwise eligible under the plan’s terms.

When you amend your group health plan to extend eligibility to same-sex spouses, you will need to adjust the plan’s special enrollment procedures accordingly to ensure that special enrollment rights are available for all eligible employees after a marriage, regardless of whether their spouse is of the same or different sex. For newly married employees, the special enrollment period must last for at least 30 days after the date of marriage, and coverage must be effective no later than the first day of the calendar month after the plan receives the enrollment request.

In addition, HIPAA’s regulations provide that, if dependent coverage was not generally made available at the time of a prior marriage, then the plan must offer a special enrollment period of at least 30 days after the plan makes dependent coverage generally available. It is unclear whether this provision applies to a plan such as yours that already was providing some dependent coverage and expands that coverage. But apart from any legal obligation, offering a special enrollment period to employees in existing same-sex marriages may boost employee morale and would avoid treating them less favorably than employees entering into a same-sex marriage after your plan is amended. You may wish to review this issue with legal counsel.

For more information, see EBIA’s HIPAA Portability, Privacy & Security manual at Sections X.D (“Acquisition of a New Dependent Through Marriage, Birth, Adoption, or Placement for Adoption”) and X.E (“Who Qualifies as a Dependent for Special Enrollment?”). See also EBIA’s Employee Benefits for Domestic Partners at Section IV.G (“Impact of Title VII on Plan Design”), EBIA’s Group Health Plan Mandates manual at Section XXI.D (“Court Decisions Applying Title VII to Health Coverage”), EBIA’s Cafeteria Plans manual at Section XIV.K (“HIPAA Special Enrollment Rights”), and EBIA’s Self-Insured Health Plans manual at Section XVI.C (“Types of Enrollment”).

Contributing Editors: EBIA Staff.

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