After much legal maneuvering, and twists and turns in the Obama administration’s position, the Office of Personnel Management recently sent Blue Cross Blue Shield a letter ordering it to “implement an expeditious enrollment of Ms. Cunninghis.”
This is the first time that the federal government has allowed FEHBP to cover the same-sex spouse of a federal employee.
The March 9 letter to the Blues, however, also made it clear that Golinski’s case is the exception, not the rule, at least not yet. The letter from Shirley Patterson, assistant director of OPM’s federal employee insurance operations, said the agency’s decision on Golinski “has no effect on enrollments requested by other same-sex spouses.”
So, for now, only Golinski and Cunninghis can reap the benefits of their legal battles. However, the U.S. District Court decision in Golinski’s case, which led to the OPM letter, certainly paves the way for others.
In February, the court ruled the Defense of Marriage Act (DOMA), which says marriage is between a man and woman, unconstitutional. The ruling also allowed the Obama administration to cease a confusing and contradictory DOMA dance.
OPM’s letter marks a turnaround for the administration, which previously said DOMA prohibited FEHBP coverage of Golinski’s wife. Although President Obama has pushed for DOMA’s repeal, his Justice Department defended the law in court until last year.
Then, Attorney General Eric H. Holder Jr. told Congress that the president had determined that a section of the act is unconstitutional and that the department would no longer defend it. Nonetheless, the administration continued to enforce DOMA, saying it would do so until Congress repealed the law or the judiciary said it is unconstitutional.
Administration officials apparently believe the district court ruling provides the cover they need to do the right thing, even though Republicans are appealing the decision.
“We are confident that the 9th Circuit will uphold Judge [Jeffrey S.] White’s beautifully reasoned opinion, and as higher courts affirm his reasoning, the ruling should apply to many more couples,” said Tara L. Borelli, a lawyer with Lambda Legal in Los Angeles. Lambda Legal represents Golinski, who coincidently works for the U.S. Court of Appeals for the 9th Circuit in California, which will hear an appeal.
The ruling is being appealed by the House Republican leadership in the name of the Bipartisan Legal Advisory Group (BLAG), which is misnamed because Democrats reject its DOMA advocacy. Speaker John A. Boehner (R-Ohio) and BLAG’s attorneys had no comment on the case. OPM referred questions to the Justice Department, which did not answer requests for comment.
Golinski didn’t want to say much, though she did express her gratitude to White and for the chance to finally exhale.
“When I sought to add Amy to my existing family health plan, I was seeking the same type of security that my married heterosexual colleagues enjoy,” Golinski said. “The day has now arrived, and we are breathing a huge sigh of relief.”
Golinski had received back pay through administrative proceedings on her case. The money covered the cost of a separate insurance policy, but it was not as good as FEHBP plans.
“We have definitely incurred higher costs over the three-years-plus course of this litigation because we have had to maintain separate health insurance for Amy,” she said. “Amy’s out-of-pocket costs were significantly higher for such things as prescription medicines and medical tests than they would have been had she been on my plan.”
The Postal Service
In unrelated FEHBP news, while Golinski has been working to cover her wife, the financially destitute U.S. Postal Service has been working to take all of its employees out of the program.
In testimony prepared for a Tuesday House hearing by the subcommittee on the federal workforce, Postal Service and labor policy, Postmaster General Patrick R. Donahoe said that establishing a separate Postal Service-sponsored health-care program “represents the largest part of the [USPS] Plan to Profitability savings, accounting for $7 billion of annual savings.”
He urged Congress to approve his proposal soon, so it can be implemented as soon as January.
That’s an absolutely terrible idea, said Walt Francis, a health economist and principal author of Checkbook’s Guide to Health Plans for Federal Employees.
“The USPS proposals would massively disrupt or destroy the FEHBP, the single most successful health insurance program ever operated by the United States government,” he said. “In destroying the FEHBP, the USPS would disrupt the health insurance of 8 million Americans and breach statutory entitlement promises made to millions of federal retirees.”
Previous columns by Joe Davidson are available at wapo.st/JoeDavidson. Follow the Federal Diary on Twitter: @JoeDavidsonWP.