Wade Clark Mulcahy LLP

<p style="text-align: justify;">A former Manhattan Assistant District Attorney, <a href="https://www.wcmlaw.com/wp-content/uploads/2022/04/Corey-Briskin.pdf">Corey Briskin</a> and his husband, Nicholas Maggipinto, have filed a complaint with the EEOC claiming the City of New York wrongfully denied them coverage for in vitro fertilization (IVF). Briskin and Maggipinto are a married couple seeking to start a family. Briskin and Maggipinto were relying on benefits afforded them by health benefits issued to employees of New York City to help mitigate the costs of IVF. Those benefits were issued through the City’s comprehensive Benefits Plan underwritten by EmblemHealth/GHI.</p>
<p style="text-align: justify;">The New York legislature recently addressed the coverage issue for IVF treatments for same sex couples in amendments to Insurance Law §§ 3221(k)(6)(C)(viii) and 4303(s)(3)(H). Both of these provisions provide that no corporation providing coverage shall discriminate based on an insured’s sexual orientation, marital status or gender identity. Moreover, in a letter circulated to insurers providing guidance after the passage of these amendments, New York’s Department of Financial Services expressly directed insurance providers to “provide immediate coverage of…treatment services…for the treatment of infertility for individuals who are unable to conceive due to their sexual orientation or gender identity.” Health Insurance Coverage of Infertility Treatments Regardless of Sexual Orientation or Gender Identity at 1 (Feb. 23, 2021), https://perma.cc/A7MV-K7FE , Department of Financial Services, Insurance Circular Letter No. 3 (2021).</p>
<p style="text-align: justify;">Briskin and Maggipinto allege that on June 8, 2021, Briskin contacted the City’s Office of Labor relations and at the New York County District Attorney’s Office to request coverage for IVF service; however, they were allegedly informed they were not eligible and were denied coverage. Under the CBP/GHI policy, infertility is defined as the inability to conceive after twelve (12) months of unprotected intercourse.” Briskin and Maggipinto allege that “intercourse” is not defined but the City and its insurance administrator interpret intercourse as “between a male and a female” thereby making it impossible for same-sex male couples to fit the definition of infertility.</p>
<p style="text-align: justify;">Briskin and Maggipinto allege that the City’s interpretation discriminates against them on the basis of sex and sexual orientation in violation of Title VII, New York State’s Human Rights Law, and New York City Human Rights Law. They argue that gay men are treated differently than others in the same position, since a straight female who cannot produce ova can receive coverage for the process of extracting ova from a donor, but gay men who are equally unable to produce ova do not receive coverage for the same treatment. Briskin and Maggipinto therefore are seeking coverage by alleging the interpretation of “intercourse” being used to deny coverage goes against public policy.</p>
<p style="text-align: justify;">Discrimination aside, another argument, although not included in Briskin and Maggipinto’s EEOC complaint, is that because “intercourse” is undefined and subject to multiple interpretations, that term is ambiguous. It is well established in New York that ambiguities in an insurance policy must be construed in favor of the insured.<em> Dean v. Tower Ins. Co. of New York</em>, 19 N.Y.3d 704 (2012). Therefore, if a Court deemed “intercourse” to be ambiguous, coverage would be found in favor of Briskin and Maggipinto. We anticipate this case to be just one of many coverage disputes over rights to certain health benefits for sexual minorities and gender non-conforming people.</p>
Thanks to Brendan Gilmartin for his contribution to this post.  Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.