January 19, 1984

Mr. Roger Tellinghuisen 
Lawrence County State's Attorney 
78-80 Sherman Street 
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 84-03

Counties self-insuring for maternity benefits

Dear Mr. Tellinghuisen:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

It is the county's understanding that according to the Pregnancy Discrimination Act, Public Law 95-555 and the Equal Employment Opportunity Commission guidelines with respect to this law, that the county must provide maternity benefit coverage if it is going to have in effect a group health plan.  It is also the county's understanding [of the federal law--phrase supplied] that they can self-insure for such pregnancy benefits despite insurance for other medical conditions, if the benefits and claim processing time are the same.

Based upon the above facts you have asked the following question:

QUESTION: 

May a county elect to self-insure as to maternity benefits and require that persons enrolling in the program pay a 'premium' to the county, which would be set aside in a special fund to help offset the cost of claims paid by the county pursuant to such self-insurance?

SDCL 7-8-26, 7-8-26.1 and 7-8-26.2 read as follows: 

7-8-26.  The board of county commissioners may enter into group hospital and medical insurance contracts for the protection and benefit of its  officers and employees, and the immediate families of those officers and employees.  The board may pay all or part of the necessary premiums for its officers and employees and pay not to exceed one-half of the necessary premiums for the immediate families of those officers and employees. 

7-28-26.1.  The board of county commissioners may enter into group life and group health insurance contracts for the protection and benefit of its officers and employees, and their immediate families.  The board may pay all or part of the necessary premiums for its officers and employees and pay not more than one-half of the insurance premiums for the immediate families of those officers and employees. 

7-28-6.2.  A board of county commissioners may elect to provide group health insurance for its officers and employees and their immediate families under a plan of self-insurance in whole or in part if that plan will cover a minimum of one hundred eligible officers and employees.  However, any such self-insurance plan is limited to coverage of officers and employees within a single county.

It is my opinion that the county may, subject to the statutes covering insurance, self-insure and charge premiums.  Those phrases that authorize all or part payment of employee premiums contemplate employee participation.  I caution that any plan must meet the requirements of insurance regulations.

Respectfully submitted,

Mark V. Meierhenry
Attorney General