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GLAA comments on proposed Domestic Partnership rulemakingGay and Lesbian Activists Alliance of Washington, DC
PO Box 75265
Washington, DC 20013
April 15, 2002
The Honorable Linda Cropp
Council of the District of Columbia
1350 Pennsylvania Ave., NW
Washington, DC 20004
Department of Health
Office of the General Counsel
825 North Capitol Street, NE, 4th Floor
Washington, DC 20002
I am writing to comment on the proposed rulemaking creating a new Title 29, Chapter 80 "Domestic Partnership." As you may be aware, GLAA chaired the commission to study the feasibility of a domestic partnership program in 1988 and led the coalition which lobbied for the Health Care Benefits Expansion Act of 1992. Establishing and implementing this program has been a high priority of GLAA for over 15 years.
While we find the regulations generally to be good, there are a few problems that need to be corrected. Primarily, the proposed regulations ignore the more than 100 couples that have already registered. They must be recognized as still registered, despite the loss or deliberate destruction of records by the Department of Consumer and Regulatory Affairs (DCRA).
In 1992 the DC Council passed the Health Care Benefits Expansion Act. The Congress failed to overturn the law outright; instead, each year for the next decade they prohibited the expenditure of any federal or DC funds to administer it. Executive Orders signed by Mayor Kelly in September 1992 established a legal method to register domestic partnerships. Registrations carried out under terms of these Executive Orders are still valid, as the Council provided no time limit, short of death or voluntary termination, for the domestic partnerships to end.
Theft or destruction of more than 100 records was reported by the director of the DC Department of Consumer and Regulatory Affairs in July of 1999. Lloyd Jordan, who was not a supporter of the law, asked the DC Inspector General to investigate the disappearance of these documents. Jordan was quoted in the December 24, 1999 Washington Blade as saying "We feel there may have been a theft," and said that the disappearance of the documents appeared to be "more than a coincidence." The destruction of the registrations and the corresponding records is a criminal act for which no serious investigation was ever conducted and no one was ever held responsible. The DC government's appalling irresponsibility should not penalize those Domestic Partners who took the trouble to obey the procedures that have been in effect for the last 10 years.
Now that all of the records have been destroyed without the possibility of recovery, they should be treated as records destroyed in a fire or other non-criminal disaster. The loss doesn't negate the registrations; rather couples should be able to present evidence of the registrations as defined in Mayor Kelly's Order and the registrations re-recorded at no additional cost and under the original date. It is reasonable for the District to demand that partners provide documentation of their registration. The 1992 instructions from the Executive Order required that the registration form, which was not provided by DC, be notarized and sent certified mail, return receipt requested. Any couple presenting a notarized form with the return receipt form from anytime between September 1992 and January 2002 should be duly recognized.
It is unreasonable, and illegal, to treat previously registered couples as unregistered until they re-register and pay the full $45. It would be reasonable to charge for a certificate, at the "certified copy of a certificate" fee of $18 as detailed in Section 8007.2 of the regulations.
The regulations also fail to recognize domestic partnerships and civil unions created in other jurisdictions. It is prudent to extend full faith and credit to other jurisdictions' domestic partnerships. Those legal rights should not disappear in the District, but rather visitors and tourists should be covered in the case of accident or injury. The rights of hospital visitation and medical determination are no less important to our visitors than our citizens.
Additionally, Section 8002.3(b) (1) provides for notifying a partner of the termination of a domestic partnership through "prepaid mail." However, it would be better to require certified mail or personal service so there is some proof. If "prepaid mail" is an option, there should be a clause added that if this method is chosen, an "acknowledgment of receipt" form shall be sent with it so that the served party can file (or return to the terminator) a signed acknowledgment of receipt. This type of acknowledgment form is typically used in civil suits, to avoid personal process service or service by certified mail.
The Williams administration has indicated that they would like the Council to amend the law to eliminate blood relatives from the Health Care Benefits Expansion Act. This would violate both the intent and the spirit of the law.
As the name of the law itself indicates, the intent was to expand health care benefits. Removing whole classes of people from access to health care is wrong. John Wilson expanded the inclusion of DC government domestic partners' family members for health benefits. He felt that his rewrite would include more benefits for more people.
The Williams Administration has indicated that coverage of blood relatives would be too expensive. Considering that the relatives are required to pay all of the costs themselves, and the city would pay only nominal administrative costs, this argument is ill-conceived. If the argument is that the health insurance premiums would increase by expanding the pool of insured, this is backwards. Insurance pools spread risk. The more people in a pool, the further the risk and expenses are spread. The presumed high-risk family members are the elderly, however, Medicare pays for their health care, making the domestic partnership program very unattractive financially. Including domestic partners in the same insurance pool as District employees and their families should make a negligible impact on the premiums and may even reduce them.
If the law is to be changed, there are a few changes that should be made. The District should pay the premiums for the domestic partners of its employees. Domestic partners should be viewed as another family member, and the city should cover domestic partners under family plans in the same way that family spouses and children are covered now.
DC should also keep up with our neighbors in Montgomery County who have expanded their domestic partnership program to include exempting domestic partners from paying property transfer levies. These taxes should be equalized for married couples and domestic partners.
A no-cost expansion that will provide a real and useful benefit is to allow Domestic Partners legal standing to sue for wrongful death an idea recently enacted into law in California in the wake of the notorious death-by-dog incident in San Francisco.
Please let us know what changes are made in the regulations.
cc: All DC Councilmembers
Wanda Alston, Special Assistant to the Mayor for GLBT Affairs