How the Supreme Court’s ruling on DOMA affects self-funded plans

By Jennifer McCormick, Esq. and Corrie Cripps (The Phia Group, LLC)

Background

United States v. Winsdor

On June 26, 2013, the U.S. Supreme Court in United States v. Windsor struck down “Section Three” of the Defense of Marriage Act (DOMA), which prevented the federal government from recognizing any marriages between gay or lesbian couples for the purpose of federal laws or programs, even if those couples are considered legally married by their home state. The other significant part of DOMA makes it so that individual states do not legally have to acknowledge the relationships of gay and lesbian couples who were married in another state. Only the section that dealt with federal recognition was ruled unconstitutional.

Potential implications for plan sponsors and administrators of self-funded medical plans

ERISA plans
• Nothing in Windsor appears to have altered how self-funded ERISA plans establish their rules regarding eligibility. Self-funded ERISA plan sponsors continue to have broad discretion in determining the class of beneficiaries who are entitled to benefits.
• Plan sponsors/administrators should ensure that any references to DOMA in their plans’ spouse or marriage definitions are removed.
o Plans that operate in states that recognize same-sex marriages should ensure that their plan’s definition of spouse clearly states the plan’s intent so there is no confusion among the plan’s participants.
• Regardless of the plan’s eligibility requirements, same sex partners are eligible for the FMLA in the 13 states that recognize same-sex marriage.

Non-ERISA plans
• Plan sponsors/administrators should review plan documents, summary plan descriptions, employee handbooks, benefit notices, and policy manuals for compliance with state laws, and to ensure clear communication regarding treatment of same-sex spouses.

DOL Technical Release 2013-04

DOL Technical Release 2013-04, issued September 18, 2013, provides that wherever the Secretary of Labor has authority, it is the intention of the DOL that: (1) The term spouse shall mean any individual “who is lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who were domiciled in a state that does not recognize such marriages.” and (2) The term marriage shall include “a same-sex marriage that is legally recognized as a marriage under any state law.”

TR 2013-04 indicates that recognition of “spouses” and “marriages” based on the validity of the marriage in the state of celebration, rather than based on the married couple’s state of domicile, promotes uniformity in administration of employee benefit plans and affords the most protection to same sex couples. TR 2013-04 does indicate that the term spouse and marriage do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union.

Timeline and application of DOL TR 2013-04 for ERISA plans

DOL TR 2013-04 does not indicate an application date; it states that the Department’s Employee Benefits Security Administration (EBSA) intends to issue future guidance addressing specific provisions of ERISA and its regulations.

However, IRS Revenue Ruling 2013-17 provides a prospective application date of September 16, 2013 (as it relates to tax issues). Further, the IRS provides that it is their intention to issue further guidance on the retroactive application of Windsor. In addition, the IRS ruling provides that they anticipate that future guidance will provide sufficient time for plan amendments.

• A conservative approach to the DOL TR 2013-04 application would be to align with the IRS application date of September 16, 2013. Thus, suggesting the modification of the definition of spouse and marriage for plan years beginning on and after September 16, 2013.
• An alternative approach to the DOL TR 2013-04 application is to only implement the DOL’s definitions of spouse and marriage if the plan’s current language is vague. For example, some plans reference their particular state’s definition of a legal spouse, which is acceptable; however, plans should no longer reference DOMA in their definition.

As with all general guidance, each employer should consider these issues in light of its own business needs and plan designs. Phia Group Consulting can assist plans in determining which approach best meets the plan’s needs.