322 | 2024 Cal-Peculiarities ©2024 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. On December 13, 2022, the Respect for Marriage Act was signed into law, repealing the federal Defense of Marriage Act, which had defined marriage as between a man and a woman.17 Unlike Obergefell, which requires states to both recognize and license same-sex marriages, the Respect for Marriage Act requires states to recognize same-sex marriages from other states, but does not require states to license same-sex marriages. The Respect for Marriage Act, therefore, codifies a portion of the Obergefell decision into federal law. The Respect for Marriage Act also requires states to recognize interracial marriages (codifying Loving v. Virginia18 into law) and permits individuals to bring a private right of action for any violation of the Respect for Marriage Act. Although these changes offer more protection for same-sex marriages by codifying case law, the Respect for Marriage Act has no practical impact on current administration of employee benefit plans because Windsor and Obergefell already require employers to treat same-sex and opposite-sex spouses the same for benefit purposes. After Windsor, Obergefell, and the Respect for Marriage Act, same-sex domestic partnerships remain legal and unchanged. Therefore, a same-sex 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 8.2.1 Autism and Pervasive Developmental Disorder Coverage. Every health care service contract and health insurance policy must cover medical services related to autism.19 This means providing coverage for behavioral health treatment, including applied behavioral analysis.20 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.21 On October 8, 2023, Governor Newsom approved Senate Bill No. 805, which expands insurance coverage to other forms of evidence-based behavioral health treatment options.22 Under prior laws and regulations promulgated thereunder, the definition for qualified providers essentially limited coverage to providers who use applied behavioral analysis. The new law directs the California Department of Development Services to issue new regulations by July 1, 2026, to address the use of behavioral health professionals and behavioral health paraprofessionals in behavioral health treatment group practice.23 Thus, insurance coverage will have to include additional providers for behavioral health treatment. 8.2.2 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
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