Oregon Family Fairness Act - April 2008

In 2007, the Oregon State Legislature and the Oregon Insurance Division (OID) made a number of significant changes related to domestic partnerships and sexual orientation. These changes affect all fully-insured group health plans written by ODS, as well as a number of ASO group health plans administered by ODS. As a result, we are providing the following summary of how the new law affects each type of plan, along with a list of frequently asked questions and answers to help in the implementation of the new law.

To begin, the OID now requires all fully-insured group health plans to add specific language to their policies providing registered domestic partners with the same coverage offered to spouses. Fully-insured groups must add this language whether they are subject to ERISA or not. In addition, ASO non-ERISA groups are required to include registered domestic partner language in their policies based on the domestic partner law itself. The only exception is for ASO ERISA groups, which can choose whether or not their policies will include registered domestic partner language.

What is Oregon’s new domestic partner law?

Oregon’s new domestic partner law consists of two separate laws: House Bill 2007 and Senate Bill 2. House Bill 2007, also known as the Oregon Family Fairness Act (OFFA), allows qualified samesex couples to register their domestic partnership in Oregon and, by doing so, affords the registered domestic partners the same rights and benefits granted to spouses under Oregon law. OFFA’s original effective date of January 1, 2008, was postponed pending the outcome of a legal challenge; however, a federal judge upheld the legislation on February 1, 2008, allowing samesex couples to register their domestic partnership pursuant to OFFA as of February 4, 2008. Senate Bill 2, also known as the Oregon Equality Act, prohibits discrimination against persons based on sexual orientation, including discrimination in compensation or in terms, conditions or privileges of employment. The Oregon Equality Act became effective on January 1, 2008.

What domestic partnerships can be registered under OFFA?

OFFA defines domestic partnership as “a civil contract entered into in person between two individuals of the same sex who are at least 18 years of age, who are otherwise capable and at least one of whom is a resident of Oregon.”

Does OFFA apply to opposite-sex domestic partnerships?

No, OFFA only applies to same-sex domestic partnerships.

What is required of group health plans to comply with Oregon’s new domestic partner law?

Under Bulletin INS 2008-2, released by the OID, all fully-insured group health policies issued or renewed on or after April 1, 2008, must contain equivalent language for spouses and registered domestic partners. ASO non-ERISA groups are required to add equivalent language for spouses and registered domestic partners based on OFFA and the Oregon Equality Act.

Do policies issued by ODS comply with OFFA and Bulletin INS 2008-2?

Yes, registered domestic partner language will be automatically included in all fully-insured policies and member handbooks as groups renew. Registered domestic partner language will also be automatically included in all ASO non-ERISA documents provided by ODS.

Can an ASO ERISA group add equivalent language for registered domestic partners to its policy even though it is not required?

Yes, ODS is prepared to include registered domestic partner language in ASO ERISA policies upon the request of the group.

Can a group add equivalent language for registered domestic partners to its policy prior to its renewal?

Yes, a group can choose to add OFFA and Bulletin INS 2008-2–compliant language to its policy, effective February 1, 2008, which is the effective date of OFFA.

Can registered domestic partners apply for coverage prior to a group’s renewal?

Yes, same-sex partners can apply for coverage beginning February 1, 2008, if they have registered their domestic partnership pursuant to OFFA and otherwise meet all of the plan’s eligibility requirements.

What are the eligibility and enrollment requirements for registered domestic partners?

The eligibility and enrollment requirements for registered domestic partners are the same as those of spouses, including the requirement that registered domestic partners submit an application within 31 days of the date the Declaration of Domestic Partnership is registered.

Do registered domestic partners have continuation rights under COBRA?

OFFA does not affect Federal law, so registered domestic partners do not have an independent election right under COBRA; however, large groups can request to extend certain COBRA rights to registered domestic partners.

Do registered domestic partners have continuation rights under Oregon law?

Yes, registered domestic partners have the same continuation rights as those of spouses under Oregon law, including General Oregon Continuation for groups with fewer than 20 employees and 55+ Oregon Continuation for groups with 20 or more employees.

Can groups continue to offer same-sex and/or opposite-sex domestic partner coverage through the use of the Domestic Partner Affidavit?

Yes, groups may continue to offer same-sex and opposite-sex domestic partner coverage through the use of the Domestic Partner Affidavit; however, groups that choose to offer domestic partner coverage through the affidavit process to opposite-sex domestic partners only may be in violation of the Oregon Equality Act. The same may be true for groups that choose to offer domestic partner coverage through the affidavit process to same-sex domestic partners only.

ODS is providing this information for your convenience and not as its legal opinion. The Oregon Family Fairness Act and the Oregon Equality Act are directed at employers and individuals. They are not insurance laws. If you have a question or concern regarding your policy, please contact your marketing representative at (503) 243-3948. If you have a question or concern regarding the impact of the Oregon Family Fairness Act or the Oregon Equality Act on you as an employer, you should consult your attorney for legal advice.