Group Health Plan Design Under the Illinois Civil Union Act
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- Scarlett Jemima Martin
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1 Group Health Plan Design Under the Illinois Civil Union Act Background On January 31, 2011, Governor Pat Quinn signed into law the Illinois Religious Freedom Protection and Civil Union Act ( Civil Union Act ) which makes Illinois the eleventh state plus the District of Columbia that affords same-sex spousal rights in one form or another. 1 The Civil Union Act s effective date is June 1, The Civil Union Act mandates legal parity between spouses in a marriage and parties to a civil union under Illinois law. A party to a civil union is entitled to the same legal obligations, responsibilities, protections and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law or any other source of civil or criminal law. 3 Illinois will recognize same-sex marriages, civil unions or other similar legal relations entered into in another jurisdiction as a civil union. 4 The Civil Union Act establishes a clear public policy in Illinois that a party to a civil union shall have the same benefits and rights as a party to a marriage. But whether Illinois public policy requires Illinois employers to offer the same group health benefits to an employee s civil union partner as an employee s spouse turns on whether the employer self-funds its employee benefits. Insured Plans The Civil Union Act does not affirmatively require Illinois employers provide any benefits to an employee s civil union partner. However, by proclaiming that the public interest is 1 Monique Garcia, Illinois Civil Unions Signed Into Law, CHICAGO TRIBUNE, Jan. 31, 2011, available at ILCS 75/2. 3 Illinois Religious Freedom Protection and Civil Union Act, P.A , Illinois Religious Freedom Protection and Civil Union Act, P.A , 60. 1
2 served through the equal treatment of spouses and parties to a civil union, the Civil Union Act likely would be found to require that employers with insured group health plans that offer spousal benefits must extend spousal benefits to civil union partners. 5 Section of the Illinois Insurance Code prohibits a group health insurance policy from including a term contrary to the public interest. 6 Effective June 1, 2011, any insured group health plan that fails to provide parity of benefits between spouses and civil union partners would likely be acting contrary to the public interest and the underlying insurance policy would be subject to termination by the Illinois Director of Insurance. 7 Illinois employers with insured group health plans with spousal benefits would also probably be required to offer civil union partners the opportunity to elect continuation coverage under Illinois law. 8 Illinois continuation coverage affects all Illinois employers with insured group health plans, including plans that are subject to federal continuation coverage under COBRA. Employers subject to COBRA (i.e. employers with at least 20 employees) generally do not need to separately comply with Illinois continuation coverage because COBRA provides greater rights and benefits than continuation coverage under Illinois law. However, COBRA benefits are not required to be provided to same-sex partners under the Defense of Marriage Act ( DOMA ). 9 Consequently, the Civil Union Act creates a situation where Illinois continuation coverage may provide greater benefits than COBRA by requiring continuation coverage rights to civil union partners. Illinois employers with insured health plans would have to offer civil union ILCS 5/367.3(a)(1). 6 Id ILCS 5/367.3(c) ILCS 5/367.2, 367e 9 1 U.S.C. 7, Pub L (a). Although the United States District Court for the District of Massachusetts declared the DOMA as unconstitutional, Massachusetts v. United States Dept' of Health and Human Srvs., 698 F. Supp.2d 234 (D. Mass. 2010), this memorandum assumes that the DOMA applies to Illinois employers. 2
3 partners continuation coverage under the parameters of the Illinois Insurance Code but would not be required to offer full COBRA continuation coverage to civil union partners. Self-Funded Plans Illinois employers that self-fund their employee group health plans do not have to offer benefits or continuation coverage to civil union partners because these plans are not subject to the requirements of the Illinois Insurance Code. Even if the Civil Union Act is broadly construed to require all employer group health plans to provide parity of benefits between spouses and civil union partners, the Employee Retirement Income Security Act of 1974 ( ERISA ) preempts Illinois law from requiring benefits be provided to a civil union partner in a non-insured plan. 10 ERISA preempts any state or local law that relates to a self-funded nongovernmental employer plan to the extent such law is inconsistent with federal law. 11 Consequently, self-funded plans are only subject to the requirements of federal law, including ERISA. Due to the DOMA, federal law does not require employers provide benefits to same-sex partners. The United States Supreme Court has consistently held that ERISA preempts state laws that require self-funded benefit plans to provide a certain type or minimum level of benefits. 12 When local ordinances in San Francisco, California, New York City and Portland, Maine required employers to provide equal benefits between same-sex partners and spouses, courts have relied on this Supreme Court precedent to hold that such a benefit mandate is preempted by 10 ERISA 514, 29 U.S.C. 1144; Egelhoff v. Egelhoff, 532 U.S. 141, (2001); Shaw v. Delta Air Lines, 463 U.S. 85, 97 (1983). 11 ERISA 514, 29 U.S.C See e.g. Egelhoff, 532 U.S. at ; Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 744 (1985) (holding that Massachusetts law requiring minimum mental health benefits in group health insurance policy is not preempted by ERISA); Shaw, 463 U.S. at 97 (holding ERISA preempts a state law prohibiting employers from structuring their plans in a manner that discriminated on the basis of pregnancy. 3
4 ERISA. 13 Even when a municipality limits the coverage mandate only to employers who contract directly with the municipality, ERISA still preempts the mandatory coverage requirement. 14 These municipalities unsuccessfully argued that such a benefits mandate is permitted under a market participation exception to ERISA preemption. These courts found that a municipality primarily motivated by fulfilling policy goals cannot satisfy the requirements of a market participation exception to ERISA preemption. 15 Illinois law cannot indirectly mandate employers with self-funded health plans provide equality of benefits between spouses and parties to a civil union through the application of its anti-discrimination statute, the Illinois Human Rights Act ( IHRA ). 16 While the IHRA prohibits discrimination based on marital status, which applying the Civil Union Act may now include a person who is a party to a civil union, ERISA preempts the IHRA s application to employee benefit plans to the extent the IHRA is inconsistent with federal anti-discrimination laws. 17 Federal anti-discrimination laws do not prohibit marital status discrimination. Even if federal law prohibited marital status discrimination, the DOMA would prevent its extension to same-sex parties to an Illinois civil union. Since the IHRA s prohibition against marital status 13 Catholic Charities of Maine, Inc. v. City of Portland, 304 F. Supp.2d 77, (D. Me. 2004); Air Transp. Assoc. of Am. v. City & County of S.F., 992 F. Supp (N.D. Cal. 1998); City of N.Y. v. Bloomberg, 6 N.Y.3d 380, 846 N.E.2d 433 (2006). 14 Air Transp. Assoc. of Am, 992 F. Supp. at 1179; Bloomberg, 6 N.Y.3d at 395. The United States Supreme Court has not recognized a market participation exception to ERISA preemption. However, some United States Courts of Appeal have recognized this exception. See e.g. Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, (9th Cir. 2010). 15 Air Transp. Assoc. of Am., 992 F. Supp. at 1179; Bloomberg, 6 N.Y.3d at ILCS 5/1-101 et seq. 17 Babcock & Wilcox Co. v. Dep't of Human Rights, 189 Ill. App.3d 827, , 545 N.E.2d 799, 809 (2d Dist. 1989). See also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 (1983) (holding that "New York's Human Rights Law is preempted with respect to ERISA benefit plans only insofar as it prohibits practices that are lawful under federal law"). 4
5 regulates conduct that is lawful under federal law, ERISA preempts the IHRA s application to employee benefit plans. 18 ERISA does not prevent employers with self-funded health plans from amending the terms of their plans to exclude parties to a civil union from the plan s definition of spouse. While Section 510 of ERISA declares it unlawful for an employer to interfere with the attainment of any right a participant may become entitled to under the plan, the Seventh Circuit has held that this section does not protect employees against all employer actions undertaken with an eye toward thwarting the attainment of benefits; only changes in one s employment status cannot stem from benefit-based motivations. 19 For example, repeatedly amending the terms of a plan immediately before an employee is about to achieve eligibility for benefits under the pre-altered plan, even if done specifically to avoid payment of benefits the employee, is not prohibited by Section 510 because it is not an action taken against the employment situation itself. When the alleged interference is not to the employment relationship which gives rise to an individual s [benefit] rights, Section 510 is not implicated. 20 Conclusion Employers with insured health plans must provide for the parity of benefits between spouses and civil union partners by June 1, Employers with insured health plans should also carefully review their continuation coverage procedure to ensure that a civil union partner is offered continuation coverage that complies, at minimum, with the requirements of the Illinois Insurance Code. 18 Bond v. Trs. of the STA-ILA Pension Fund, 902 F. Supp. 650, 655 (D. Md. 1995) (holding ERISA preempts Baltimore s ordinance prohibiting marital status discrimination); Robbins v. General Motors Corp., No. L87-79CA, 1989 WL at * 3 (W.D. Mich. June 19, 1989) (holding ERISA preempts Michigan law's prohibition against marital status discrimination). 19 Teumer v. General Motors Corp., 34 F.3d 542, 545 (7th Cir. 1994). 20 Id. 5
6 Employers with self-funded health plans must determine whether to provide benefits to employees civil union partners. Once that decision has been made, these employers should carefully review their health plans to ensure the terms of the plan are appropriate. Derek A. Schryer DAVIS & CAMPBELL L.L.C. (309)
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