Question:

I live and work in California, but my employer is located out-of-state. My employer provides me with a variety of benefits, including health care coverage. However, I was told that health insurance is not available to my registered domestic partner. Is this legal? I thought that the law required companies to treat domestic partners just like spouses.

Answer:

You are correct that the law in California requires that registered domestic partners be recognized and provided the same rights as spouses. This is the result of the California Domestic Partner Rights and Responsibilities Act of 2003 (also known as California Assembly Bill 205), the domestic partner law that took effect on January 1, 2005. Under Assembly Bill (AB) 205, registered domestic partners are entitled to the same legal treatment and protection as spouses in most areas of state law, including community property laws. Moreover, the law imposes an obligation on employers to provide the same “rights, protections, and benefits” to registered domestic partners as the employer extends to spouses.

Note that the law only applies to registered domestic partners in California. A domestic partnership is formed when a Declaration of Domestic Partnership is filed with the Secretary of State. In order to qualify as such, a domestic partnership must meet all of the following requirements:

  • both persons have a common residence;
  • both persons are at least age 18;
  • the 2 persons are not related by blood in a way that would prevent them from being married to each other;
  • neither person is married to someone else or a party to another domestic partnership;
  • the persons are of the same sex, or one or both of the persons in an opposite-sex couple is at least age 62; and
  • both persons are capable of consenting to the domestic partnership.

AB 205 also had the effect of extending health care benefits to domestic partners, and requiring group health care service plans and insurance companies to offer health coverage for a registered domestic partner equal to the coverage offered to the “dependent” of the employee or subscriber. However, in 2004 the legislature voted to enact the California Insurance Equity for All Families Act (AB 2208), which revised AB 205 to require group health care service plans and insurance policies to provide a registered domestic partner of an employee or subscriber with health benefits on the same terms and conditions as a “spouse,” instead of a “dependent.” AB 2208 applies to group health care service plans or group health insurance policies issued, amended, delivered, or renewed in California on or after January 2, 2005. Simply put, if an employer’s medical plan offers benefits to employees’ spouses and the medical plan is not self-funded, then the health care service plan or insurance company must offer benefits to registered domestic partners on the same terms and conditions as it offers them to spouses.

In addition, the California Insurance Code provides that every policy issued, amended, delivered, or renewed in California must provide coverage for a registered domestic partner of an insured or policyholder that is equal to, and subject to the same terms and conditions as, the coverage provided to a spouse of an insured or policyholder. ( California Insurance Code § 381.5.) This subdivision applies to all forms of insurance regulated by the Insurance Code, which includes both health and disability plans, as well as life insurance programs.

The law is therefore very specific with regard to the types of insurance plans that are covered, i.e., to plans that are issued, amended, delivered, or renewed in California. The requirements of AB 2208 therefore do not apply to policies that are issued outside of California—this is true even if the employer is California-based, but the insurance policy is written outside of California. In addition, self-funded insurance plans do not have to comply with AB 2208. This is because such self-funded plans are covered by the federal Employee Retirement Income Security Act (ERISA) and are not subject to state laws such as AB 2208.

In light of the foregoing, it is possible that your employer’s plan is not subject to AB 2208’s requirements. If your employer’s health insurance policy was written outside of California, the insurer is not required to extend coverage to your domestic partner. Similarly, if the plan is self-funded, AB 2208’s requirements are likewise inapplicable. Because your employer is located outside of California, it is quite possible that its health insurance policy was written out of state. However, you should still inquire as to the origins of the policy—if it turns out that it was actually issued, amended, delivered, or renewed in California, then your domestic partner would be entitled to the same coverage as any other employee’s spouse.
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