No. Federal regulations on the guaranteed availability requirements provide that a health insurance issuer offering non-grandfathered group or individual coverage is considered to employ marketing practices that discriminate based on sexual orientation if:

1. The issuer offers coverage of an opposite-sex spouse; and

2. The issuer chooses not to offer, on the same terms and conditions as those offered to an opposite-sex spouse, coverage of a same-sex spouse based on a marriage that was validly entered into in a jurisdiction where the laws authorize the marriage of two individuals of the same sex, regardless of the jurisdiction in which the insurance policy is offered, sold, issued, renewed, in effect, or operated, or where the policyholder resides.

The regulations do not require a group health plan to provide coverage that is inconsistent with the terms of eligibility under the plan, or otherwise interfere with the ability of a plan sponsor to define a dependent spouse for purposes of eligibility for coverage under the plan. Instead, they prohibit an issuer from choosing to decline to offer to a plan sponsor the option to cover same-sex spouses under the coverage on the same terms and conditions as opposite sex-spouses.

Recognizing that some issuers may have misunderstood this prohibition when designing their policies, the Centers for Medicare and Medicaid Services (CMS) is encouraging compliance for the 2014 plan year and requiring full compliance no later than the 2015 plan year.

Source: 45 CFR 147.104(e); Frequently Asked Question on Coverage of Same-Sex Spouses, March 14, 2014, Centers for Medicare & Medicaid Services; http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/frequently-asked-questions-on-coverage-of-same-sex-spouses.pdf.