OCR Guidance for HIPAA and Same-sex Marriage after United States v. Windsor

The Department of Health and Human Services Office for Civil Rights (HHS-OCR) has developed guidance to assist HIPAA covered entities in understanding the effect of the Supreme Court’s decision in United States v. Windsor on HIPAA privacy obligations. The HIPAA Privacy Rule contains several provisions that reference the role that family members, including spouses, play in patient care.

In Windsor, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA) as unconstitutional, which provided that federal law would only recognize opposite-sex marriages. The HHS-OCR guidance explains that following Windsor, covered entities (and business associates, where applicable) must consider married same-sex spouses and same-sex marriage under the HIPAA regulations.

The HHS-OCR guidance addresses several places where the terms “spouse”, “marriage” and “family member” are used and defined in the HIPAA regulations:

  1. At 42 CFR 160.103, the definition of “family member” includes the terms “spouse” and “marriage”. The HHS-OCR guidance provides that consistent with the Windsor decision:
    • The term “spouse” includes individuals who are in a legally valid same-sex marriage sanctioned by a state, territory, or foreign jurisdiction (as long as, as to marriages performed in a foreign jurisdiction, a U.S. jurisdiction would also recognize the marriage).
    • The term “marriage” includes both same-sex and opposite-sex marriages.
    • The term “family member” includes dependents of both same-sex and opposite sex marriages.

It should be noted that all of these terms apply to individuals who are legally married, whether or not they live or receive services in a jurisdiction that recognizes their marriage.

  1. The definition of a “family member” is relevant to the application of 45 CFR 164.510(b) Standard: Use and disclosures for involvement in the individual’s care and notification purposes. Under this standard, covered entities are permitted to share an individual’s protected health information with a family member of the individual in certain situations. Following Windsor, legally married same-sex spouses, regardless of where they live, are “family members” for purposes of applying this standard.
  1. The term “family member” is also relevant to the application of 45 CFR 164.502(a)(5)(i), Use and disclosure of genetic information for underwriting purposes. Under this provision, health plans (other than issuers of long-term care policies) are prohibited from using or disclosing genetic information for underwriting purposes. In light of Windsor, this includes the genetic tests of a same-sex spouse of the individual or the manifestation of a disease or disorder in the same-sex spouse of the individual.

The guidance indicates that HHS-OCR intends to issue additional clarifications in the coming months to address same-sex spouses as personal representatives under the Privacy Rule.

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