320 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com In 2013, the U.S. Supreme Court, in United States v. Windsor,15 struck down section 3 of the federal Defense of Marriage Act as unconstitutional. Windsor requires that same-sex marriages be recognized for all federal purposes, as long as the marriage was valid in the jurisdiction where it was entered into. In 2015, in Obergefell v. Hodges, the U.S. Supreme Court again addressed same-sex marriage, and required full equality between same-sex and opposite-sex spouses under federal and state law.16 This decision clarified that health benefits provided to same-sex spouses are no longer taxable to the employee under either federal or state law. Obergefell did not, however, apply to unmarried same-sex partners who are in a domestic partnership or civil union. As a result, nothing in Obergefell changed the domestic partner coverage requirements for insured health plans in California. After Windsor and Obergefell, same-sex domestic partnerships remain legal and unchanged. Therefore, a samesex domestic partnership is still a legal option in addition to a same-sex marriage. As a result, fully insured benefits are still subject to California insurance laws and employers must continue to recognize same-sex domestic partnerships. 8.2 Required Coverage Autism and Pervasive Developmental Disorder Coverage. Every health care service contract and health insurance policy must cover medical services related to autism.17 This means providing coverage for behavioral health treatment, including applied behavioral analysis.18 Health care service plans and health insurers must maintain an adequate network of qualified autism providers, and the law imposes specific requirements on autism service providers with respect to treatment plans they prescribe. This law, originally set to sunset in 2017, has been extended indefinitely.19 Maternity Services Coverage. Every group and individual health insurance policy must cover maternity services, which include such things as prenatal care, ambulatory care maternity services, involuntary complications of pregnancy, neonatal care, and inpatient hospital maternity care (including labor and delivery and postpartum care).20 This definition is subject to change when the federal Patient Protection and Affordable Care Act defines the scope of benefits to be provided under its own maternity benefit requirement.21 There are exceptions for specialized health insurance, Medicare supplement insurance, CHAMPUS-supplement insurance, or TRI-CARE supplement insurance, or to hospital indemnity, accident-only, or specified disease insurance.22 Group Coverage Maintained During Pregnancy Leave. As discussed above (§ 2.1), California employers must maintain and pay for coverage for eligible employees who take pregnancy disability leave under a group health plan, throughout the leave (up to four months over a 12-month period), at the level and under the conditions coverage would have existed had the employee continued in continuous employment during the leave.23 8.3 Cal-COBRA The federal Consolidated Omnibus Budget Reconciliation Act (COBRA)24 generally requires employers of 20 or more employees who offer a group health care plan to offer the option of continuing health care coverage for up to 18 months if coverage is lost or reduced.25 Members of the employee’s family must also be given the opportunity to continue their coverage.26
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