HHS Releases HIPAA and Same-Sex Marriage Guidance in Light of Windsor

Author: Gloria Ju

September 24, 2014

The US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) released guidance addressing the effect of United States v. Windsor on the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. Covered entities (and business associates, as applicable) must understand how the Privacy Rule applies to lawfully married same-sex spouses in light of Windsor, which struck down the portion of the Defense of Marriage Act providing that federal law recognizes only opposite-sex marriages. The HIPAA Privacy Rule contains several provisions that recognize the integral role that family members, such as spouses, often play in a patient's health care.

HIPAA includes the terms spouse and marriage in the definition of family member. Consistent with Windsor, 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 the marriage performed in a foreign jurisdiction would be recognized in a US jurisdiction). The term marriage includes both same-sex and opposite-sex marriages, and family member includes dependents of those marriages. 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 (in other words, the state of celebration rule applies, rather than place of residence).

Under certain circumstances, covered entities are permitted to share an individual's protected health information with a family member of the individual. Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying this provision.

HIPAA prohibits health plans, other than issuers of long-term care policies, from using or disclosing genetic information for underwriting purposes. For example, such plans may not use information regarding the genetic tests of an individual's family member, or the manifestation of a disease or disorder in an individual's family member, in making underwriting decisions about the individual. This includes the genetic tests of an individual's same-sex spouse, or the manifestation of a disease or disorder in an individual's same-sex spouse.

In the coming months, OCR intends to issue additional clarifications to address same-sex spouses as personal representatives under the Privacy Rule.