HHS recently released guidance  about HIPAA regulations affected by the Supreme Court’s 2013 United States v. Windsor ruling that found Section 3 of the federal Defense of Marriage Act (DOMA) unconstitutional. Section 3 of DOMA states that federal law would only recognize opposite-sex marriage.
The HIPAA Privacy Rule includes information about the role of family members in patient care. Section 45 CFR 160.10 of the rule includes the terms “spouse” and “marriage” under the definition of family member.
To maintain consistency with the United States v. Windsor ruling, the term spouse includes people in a legally valid same-sex marriage sanctioned by a state, territory, or foreign jurisdiction. However, same-sex marriages performed in a foreign jurisdiction must be recognized in the United States for a patient’s partner to be recognized as a spouse under HIPAA.
Similarly, the HIPAA Privacy Rule recognizes marriage between same-sex and opposite-sex couples and defines a family member as a dependent of a marriage. These definitions apply to people who are legally married whether the jurisdiction where they reside recognizes the marriage or not.
Under §164.510(b) Standard: Uses and disclosures for involvement in the individual’s care and notification purpose, covered entities are permitted under certain circumstances to share PHI with a patient’s family member. Legally married same-sex couples are family members for the purpose of this provision regardless of where they reside.
The definition of family member also applies to §164.502(a)(5)(i), Use and disclosure of genetic information for underwriting purposes, which prohibits health plans with the exception of issuers of long-term care policies from using or disclosing genetic information for underwriting purposes. Plans are not permitted to make underwriting decisions about a patient based on his or her same-sex spouse’s genetic test results or manifestation of disease.