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Same-sex Marriage and its Effect on Health Plans Offering Spousal Coverage

The United States Supreme Court’s decision on October 6, 2014, to deny review of various appellate court rulings (including the Tenth Circuit, the federal appeals court covering Colorado), which had struck down bans on same-sex marriage as unconstitutional, effectively legalized same-sex marriage in the state of Colorado. On October 7, 2014, the Tenth Circuit and Colorado Supreme Court lifted stays and issued orders necessary to provide for the legalization of same-sex marriage. The Colorado Attorney General directed all county clerks in the state to begin issuing marriage licenses to same-sex couples, noting that same-sex marriage is now legal in Colorado. Although Amendment 43 to the Colorado Constitution, which bans same-sex marriage, has not yet been repealed, this formality will likely be addressed in the future to fully comply with the legalization of same-sex marriage.

For ERISA health plans in Colorado offering spousal coverage and defining “spouse” in terms of state law, the legalization of same-sex marriage means that same-sex spouses are now eligible for coverage under those plans. Fully-insured plans offering spousal coverage are similarly affected as they are governed by state law.

Given the newness of this issue, there is not yet definitive guidance as to the impact of the change in law on HIPAA special enrollment rights. However, because HIPAA special enrollment rights clearly include marriage and the acquisition of a dependent, it seems appropriate to consider that in plans defining “spouse” in terms of state law, same-sex spouses will not only be eligible for 2015 coverage but will also be eligible for mid-year enrollment within 30 days (unless the plan’s rules provide for a longer period of time) of either the date of the marriage or the change in law (presumed to be October 7, 2014) if already married.