In a previous entry, we discussed the “self-insured” loophole to the Massachusetts insurance laws that otherwise require extension of medical benefits beyond federal "COBRA" benefits to ex-spouses. If a family is unlucky enough to have employer coverage where risk of loss remains the employer’s, rather than an insurer’s, these benefits do not apply; and the parties must default to the less generous COBRA.
As difficult as this is for families who depend on self-insured employers, the result is even more draconian for same sex ex-spouses. This is because the existing federal Defense of Marriage Act (DOMA), does not recognize legally married couples of the same gender (now including ten states and D.C.) as spouses, at all. Since spousal COBRA rights require a federally recognized marriage, divorced same sex spouses with self-insured employers here remain uncovered by any spousal continuation benefits.
Beyond simple unfairness, this undermines the policy of the 2012 Affordable Care Act, as it becomes fully operative in 2014: just one more reason to hope that the United States Supreme Court strikes down DOMA.