Just a couple of quick thoughts on the impact of wide spread same sex marriage recongition and legalization regarding insurance. As a reminder, I am not a lawyer, financial planner or any other respectable professional, so SPEAK TO A PROFESSIONAL if these laws, rules and regulations touch you!
From my understanding, the law is a bit vague regarding health insurance benefits for same sex married couples. National Law Review has an interesting overview of the state of dispute:
A federal district court in the Southern District of New York found that a self-insured health plan that specifically excludes same sex couples does not run afoul of ERISA. Roe v. Empire Blue Cross Blue Shield, 2014 WL 1760343 (S.D.N.Y. May 1, 2014). The case involved an employee of St. Joseph’s Medical Center in New York, who married a person of the same sex in 2011. Later that year, the employee sought to add her spouse as a dependent under St. Joseph’s self-insured health plan. Inasmuch as the plan specifically excluded same-sex spouses and domestic partners from coverage, the employee’s request to have her spouse covered under the plan was denied…
It also rejected plaintiffs’ argument that Windsor changed the legal landscape concerning the requirement to provide benefits to same sex spouse. In so ruling, the court considered the only other decision to have addressed the application of Windsor to ERISA-covered plans, Cozen O’Connor P.C. v. Tobits, 2013 WL 3878688 (E.D. Pa. Jul. 29, 2013) (holding that the provision of spousal benefits to a deceased’s same-sex spouse in a plan that did not define “spouse” was required following Windsor) and found that it was distinguishable on the ground that the St. Joseph’s plan specifically excluded same-sex spouses from coverage whereas Cozen dealt with a plan that did not define the term “spouse.”
If I am reading this right, companies that offer employee sponsored insurance that want to intentionally discriminate and be douchebags can legally be douchebags. However they have to be specific and up-front about their douchebaggery. The default assumption however is that spouse means spouse regardless of their plumbing.
From an insurance company point of view, this is no big deal. Every insurance company knows how to set up riders that carve-out or include groups, classes of dependents or certain services. Mayhew Insurance has riders for Catholic institutions regarding birth control, riders for a Jehovah’s Witness requirement, riders for domestic partnership benefits, riders for extra benefits for infertility. Setting up a rider to exclude same sex spouses is a minor plumbing task.
The more interesting thing is what will companies use as a cheap signal of non-douchebaggery. Extending benefits to same sex spouses and domestic partners is a fairly cheap way for a company to say that they want the best people. This signal worked as it was originally an unusual and visible decision. It was away from societal default and it worked as a recruiting tool for both straight and LGBQT individuals. However, same sex spouse benefits are quickly becoming the default option. It will only be notable when an insititution or employer says that it will not offer same sex spousal benefits. At that point, that employer is signalling that it does not want the best employees irregardless of what people do on their own time.
So what would the new signal of non-douchebaggery be?