TGIF

Yesterday, the U.S. Court of Appeals for the First Circuit, sitting in Boston, ruled that the Defense of Marriage Act ("DOMA") is unconstitutional. DOMA requires that the word spouse be interpreted to mean a person of the opposite sex whenever the word is used in a federal statute or regulation. The FEHB Act defines family member to include the enrollee's spouse. Pursuant to DOMA, therefore, same sex spouses cannot be enrolled for FEHBP self and family coverage. The courts generally have reacted negatively to this law in recent years as six states and the District of Columbia now will issue marriage licenses to same sex couples. The courts see DOMA as infringing on the state's rights to regulate family law matters, among other issues.

The issue will now proceed to the Supreme Court for a decision, likely in the first half of 2013. In the meantime, the Court of Appeals has continued in place the stay of the unconstitutionality decision. The FEHBlog expects that the Supreme Court will rule DOMA unconstitutional and then the Program will be opened up to same sex spouses. These court proceedings do not have the potential to moot Sen. Lieberman's same sex domestic partner legislation (S. 1910) because the vast majority of states do not recognize same sex marriage.

Following up on Wednesday's post, the House Ways and Means Committee did clear four health care related bills yesterday "on a bipartisan basis." One bill (H.R. 436) would repeal the Affordable Care Act's medical device tax, which has been under a lot of fire lately, as its 2013 effective date nears.  The law will require manufacturers of most medical devices to pay 2.3% of their U.S. sales in taxes. Another (H.R. 5842) would repeal the ACA's provision limiting any health plans, HSA, HRA or FSA coverage to prescribed over the counter drugs, which is a non-sequiter. The other two bills (HR 1004 and HR 5858) concern flexible spending account plans as discussed in this Business Insurance article.