Domestic Partners and family status change updates?

[Guest grafals]

Sec. 125 says that a participant must make an irrevocable election prior to the start of a plan year. However, in the event of a family status change under HIPAA, the participant may modify their election.

HIPAA defines a family status change as it relates to a dependent or SPOUSE. A domestic partner cannot be considered a spouse, because DOMA limits the definition of spouse under federal law, to an opposite sex married partner.

So, for a long time, we and others, provided for family status changes in elections in the case where a domestic partner could be qualified as a dependent.

Now, my read of the new definition of dependent after WFTRA, is that the domestic partner would, among other requirements, have to make something less than the amount of the personal exclusion for tax purposes (about $3900 or so I think?) in order to qualify as a dependent.

So, as a practical matter, it looks like only non-working domestic partners (or those with only casual incomes) could form the basis of a family status change for a cafeteria plan.

(NOW MY QUESTION): Recently, I was advised by someone that the most recently released HIPAA final rules contain a loosening of this and would, going forward, permit inclusion of a domestic partner in the definition of spouse or dependent. However, I can't find the source of this and the person who told me, although usually reliable, cannot point me to a particular cite I can use to verify.

Is this correct? Does anyone know more about this yet? Please advise. I have participant requests pending and when we went to our outside provider, they didn't even know about the impact DOMA had on HIPAA so they were even less help.

Thanks!