By SPC Tina Nguyen
Stuttgart Law Center
This article is for informational purposes only and is not intended as legal advice. For advice on your specific legal questions you should seek the advice of an attorney.
On June 26, 2013, the Supreme Court issued a historic decision on the Defense of Marriage Act (DOMA). Section 3 of DOMA was found to be unconstitutional and struck down. As a result, same-sex spouses of Federal employees and annuitants are now eligible for benefits regardless of the employee’s or annuitant’s current state of residency. On June 26, 2015 the United States Supreme Court ruled that the constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when lawfully licensed and performed out-of-state. Federal employees and their annuitants can get married anywhere in the states including their state of residence.
OPM (Office of Personnel Management) informs health insurance carriers participating in the Federal Employees Health Benefits Program (FEHB) for 2016 health plans that they are prohibited from general exclusion of services, drugs, or supplies related to gender transitioning. This basically indicates that carriers cannot have a general exclusion against related costs for transition. www.opm.gov/insure covers health plans by state and review their official statement of benefits, along with a list of directories of doctors and hospitals who participate with those plans linking to their websites.
All the programs listed below are now available to same-sex marriages. Foreign marriages consistent with OPM’s longstanding policy of recognizing legal foreign marriages for opposite sex couples are also included. Same sex couples who are in a civil union or a domestic partnership other than marriage will remain mostly ineligible for the programs listed.
The Federal Employees Health Benefits (FEHB) Program
Eligible family members include your spouse (same sex included) or a child up to age 26. A child 26 and over who is incapable of self-support due to a disability that existed before age 26 is also considered an eligible family member. There is a self-enrollment, a self and family enrollment (which covers the enrollee and all eligible family members). You can enroll or change from self to plus one, also from one plan to another. You can contact your HR office to complete FEHB Health Benefits Election Form. Go to www.opm.gov/FEHbrochures for more information on insurance plans. Go to www.checkbook.org to see if your agency subscribes to this plan comparison. www.opm.gov/SelfPlusOne to learn more about Self-Plus One. Divorce is also a qualifying life event and your former spouse is no longer a family member and cannot be covered under your FEHB enrollment. Your children are still able to be covered by this plan. If you have a court order that instructs you to continue to provide health benefits for your former spouse, you need to contact your Human Resources (HR) office or retirement office to arrange that. If you do not have a court order for health coverage for your former spouse, your former spouse may qualify for temporary continuation of coverage for up 36 months; they can contact your HR office or retirement office.
The Dental and Vision Program (FEDVIP), Federal Flexible Spending Account Program (FSAFEDS), and Federal Employees’ Group Life Insurance (FEGLI)
For all of these programs (FEDVIP, FSAFEDS, and FEGLI), you can sign up for them if there is a qualifying life event. Two examples of a qualifying life event is marriage or when you acquire a newly eligible family member such as a child, in either case, the new family member can be enrolled 31 days before the event or until 60 days after. The other chance you would be able to sign up for these programs would be during their selected open season. Please keep this in mind for the programs listed below.
For the FEDVIP, you can enroll in a dental plan or vision plan, or both, from self only, to self plus one, and it allows you to change plans. It includes your unmarried dependent children under 22, with the exception of children who are not able to self-support. In the beginning of 2016, children of same sex domestic partners will no longer be eligible for FEDVIP coverage. You must marry your partner for that coverage. All changes can be made through www.benefeds.com or by calling 1-877-888-FEDS. Divorce counts as a loss of covered family member qualifying life event, it allows an enrollee to decrease their coverage, Self Plus One to Self Only. It does not allow an enrollee to cancel FEDVIP altogether or to increase their enrollment, or newly enroll if you’re not currently enrolled.
For FSAFEDS, it is a program that allows participating agencies to pay for their family’s out of pocket healthcare expenses and their family’s daycare expenses with pretax income. This will also include your children’s out-of-pocket health expenses, as well as yours and your spouses to be reimbursed. It allows you to enroll in a healthcare account, a daycare account, or both. You can also increase your existing FSA election if you’re already in the program, such as your spouse’s qualified healthcare expenses to be reimbursable. To do so, visit www.FSAFEDS.com or call 1-877-371-3337. Divorce also counts as a qualifying event for FSAFEDS, it allows a non-enrolled employee to enroll, increase their election or decrease their election, as long as it’s consistent with the life event.
The life insurance program, FEGLI, allows employees to get any coverage that they offer. You can get coverage from as little as one year’s annual salary up to six times your annual salary. You can also elect coverage for your spouse for as little as $5,000 or up to $25,000 and coverage on the life of your unmarried dependent children who are 22, or unable to self-support, for as little as $2,500 and up to $12,500. If you already have the Option C family coverage (which includes children) and then you get married, you will not need to add your spouse because Option C automatically covers all eligible family members (including same-sex partners). When you get married, it is a good opportunity to update the beneficiaries for the life insurance coverage, which you would need to contact your HR offices. Your benefits will be paid according to the order provided by law, which at the top is your surviving spouse. Divorce is also a qualifying event, it allows you to enroll or increase your coverage up to the maximum. Divorce events is a good time to update your designation of beneficiary.
The Federal Long Term Care Insurance Program (FLTCIP)
The FLTCIP has no qualifying life event for this program because you and your qualifying family members can apply anytime, it also covers same sex domestic partners. It is for nonmedical day to day care, the kind you would receive at a nursing home, assisted living facility, etc. for reasons such as age or chronic injury. You or your family members will need to answer a questionnaire before you enrolling. Children can apply for this insurance once they are 18 years old. You can apply online at www.ltcfeds.com or call 1-800-582-3337.
Spouse’s gender no longer plays a role in determining eligibility for retirement benefits. Same sex spouses are now eligible for the Survivor Benefit Plan (SBP). The link that provides information on retirement is www.opm.gov/retire and you can also go to your agency HR office. By law, if you are currently married, you will have to provide a full survivor benefit to your spouse, unless you get your spouse’s consent to something other than a full survivor benefit. If you are under Civil Service Retirement System (CSRS), the full survivor benefit is 55% of what your annuity is, that would be payable as a survivor benefit. For the Federal Employees Retirement System (FERS), the survivor benefit would be 50% of what your annuity would be. The survivor annuity is also a program that would apply to domestic partners. If you’re a current federal employee, you can obtain detailed information such as the cost to providing that survivor benefit from your HR office. They should be able to run an annuity estimate for you close to retirement at which point it would give you the cost to provide the survivor benefits. To do so, you must also provide medical documentation to prove you are in good health. If you want to provide something less than a full survivor benefit, that’s something that you would have to discuss with your spouse for their consent. If you get married after retirement, you can elect to reduce annuity to provide a survivor annuity for your spouse. You have to make this election within two years after the date of marriage or two years within the date of retirement. If you have any questions you can call 1-888-767-6738. If divorce does happen, you may want to update your beneficiaries as well. You can also elect to provide a survivor annuity or a portion of your annuity for your former spouse within two years of the divorce or qualifying court.
Pay and Leave
Domestic Partners, including same sex and opposite sex partners that are included as family members for sick leave, voluntary leave transfer, and voluntary leave bank program. Sick leave includes any incapacity due to pregnancy, childbirth, and prenatal care for you or a same sex partner or sick leave used for prenatal healthcare appointment. Sick leave can be used for any period of morning sickness and any incapacity due to child birth. Incapacity to child birth includes recovery or care for that person who is recovering from childbirth. Employees can use donated leave only if you have exhausted all of your own leave first, annual and sick leave. In terms of adoption, families who are adopting were put on parity with families who are getting pregnant and having children. If the parent has to be absent to do things like meet with an adoption agency, talk with a social worker, court dates and court proceedings, including time to bond with the child, or things of that nature, employees are entitled to use sick leave for those purposes.
Family and Medical Leave (FMLA), same sex spouses are entitled to use FMLA in the same manner as federal employees with different sex spouses. This also includes a son or daughter, which is defined in the regulations as under 18 or over 18 who is incapable of self-care because of a medical, mental or physical, disability. The memoranda provided about FMLA is called Compensation Policy Memoranda 2013-2014 for guidance to agencies for this matter until the FMLA regulation is complete. The FMLA regulations will include the revised definition of spouse in OPM. There are military FMLA for spouses who are deploying and several other reasons for qualifying exigencies.
Listed Plans – www.opm.gov
Sane-Sex Spousal Benefits – https://hr.od.nih.gov/benefits/domesticpartner/domesticpartner.htm
Guidance an Other Resources – https://hr.od.nih.gov/benefits/domesticpartner/guidanceandotherresources.htm
Frequently Asked Questions – https://hr.od.nih.gov/benefits/domesticpartner/faq.htm
Benefits for LGBT Federal Employees and Annuitants Webinar: