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Affidavit for Domestic Partnership


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I am working for a multi-state organization that allows for Domestic Partner coverage.  I have one vendor contract that requires individuals to cohabitate for 12 consecutive months in order to qualify as a Domestic Partners.  In writing a company policy pertaining to the qualifications required to be a Domestic Partner, it would make sense use the most stringent set of rules presented in the collective contracts to develop our official policy.  With that said, I'm wondering if this 12 month cohabitation rule might violate any state requirements?  If a state's definition of domestic partnership does not require a 12 month cohabitation period and that state/local jurisdiction requires an employer to provide benefits to domestic partners, this creates a conflict.

Curious to know how others might be handling things from a policy standpoint.

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A few questions:

Is the employee-benefit plan ERISA-governed?

Is any health or other welfare benefit provided by an insurance contract?

Is any health or other welfare benefit provided from the employer’s resources and not by an insurance contract?

To the extent that the plan’s provisions are not constrained by a State’s insurance law or by an insurer’s contract, what would the plan’s sponsor prefer to provide?

About a State’s or a political subdivision’s requirement, do you mean a general public law?

Or do you mean a condition imposed regarding a government’s action as a buyer of goods or services offered by the plan’s sponsor or its affiliate?

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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Sorry, more specific:

Yes, the employer offers fully insured benefits (medical, dental vision) that are bound by a contractual agreement with the carrier.  These plans are subject to ERISA. 

As for employer preference, we are looking for a singular domestic partner policy that is consistent with all benefit plans that allow for a domestic partner coverage while maintaining compliance with local and state laws imposed on employers that offer benefits.

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There are two types of domestic partnerships at play:

  1. Registered domestic partnerships (RDPs); and
  2. Company-defined domestic partnerships.

For RDPs, some states will require that fully insured plans sitused in that state treat RDPs and spouses equally as a matter of state insurance law.  California is a prime example.  The employer is not involved in the RDP status determination, that's simply a function of the employee meeting the state conditions and registering with the state.

For company-defined DPs, the employer has broad discretion on how to handle. Cohabitation requirements are common in these definitions.  It doesn't matter what state RDP conditions are for purposes of the company definition of a DP.

Here's an overview:

https://www.newfront.com/blog/registered-domestic-partners-and-company-defined-domestic-partners

Company-Defined Domestic Partners: Employer Discretion

Many employers prefer to offer domestic partner health plan coverage more broadly than what is required for RDPs.  RDP status is the functional equivalent of marriage in California (including community property), and many employees do not want to enter into a serious, state-recognized relationship with significant rights and obligations to enroll their “domestic partner.”

As a recruiting and retention matter, it can be difficult to limit domestic partner eligibility exclusively to RDPs because many employees expect the ability to enroll an individual based on a relationship that meets a lower standard than the formal RDP status.

Company-Defined Domestic Partners: Domestic Partner Policy

Employers that choose to offer domestic partner coverage more broadly can develop their own domestic partner policy that permits employees to enroll their domestic partner simply by meeting the company’s definition of a domestic partner.  These domestic partners are typically referred to as company-defined domestic partners or non-RDPs.

The insurance carrier (or stop-loss provider for self-insured plans) will almost always defer entirely to the company’s definition of a domestic partnership.  Note, however, that some carriers require employers to declare in the application or renewal that they are offering coverage more broadly than the RDP requirements.

Company-Defined Domestic Partners: Verification

Although some employers choose not to require any form of verification, most employers require employees to complete an affidavit whereby employees attest to their relationship meeting the company-defined domestic partner status in order to enroll the domestic partner in the health plan.

This approach generally serves two primary purposes: 1) ensuring that employees are aware of the company’s domestic partner definition, and 2) preventing potential fraudulent enrollment to some degree.

Note: The equal verification rules for RDP relationships do not apply to company-defined (non-RDP) domestic partner eligibility.  Employers commonly require employees to complete a domestic partnership affidavit to establish eligibility of a company-defined domestic partner regardless of whether they request verification of a marriage or RDP relationship.

Company-Defined Domestic Partners: Common Requirements

Company-defined domestic partner policies typically require all or some of the following elements to establish an eligible domestic partner:

  • Ongoing and committed relationship
  • Relationship has existed for a set period
  • Both individuals are at least 18 years old and competent to contract
  • Neither individual is currently married or in a RDP relationship with another
  • Intent to remain in the relationship indefinitely
  • Not related by blood in a way that would prevent marriage/RDP relationship
  • Share the same residence for a set period
  • Jointly responsible for each other’s financial obligations
  • Are not in the relationship solely for the purpose of health plan eligibility

 

Slide summary:

2023 Newfront Health Benefits for Domestic Partners Guide

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MD-Benefits Guy, listen carefully to Brian Gilmore’s wide knowledge.

And don’t be distracted by the example about California law; the concepts described might apply regarding Maryland’s and other States’ laws.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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