HIPAA and Same-sex Marriage: Understanding Spouse, Family Member, and Marriage in the Privacy Rule

The U.S. Department of Health and Human Services Office for Civil Rights (OCR) has developed guidance to assist covered entities in understanding how the decision by the Supreme Court in United States v. Windsor may affect certain of their HIPAA Privacy Rule obligations.

The HIPAA Privacy Rule recognizes that family members, such as spouses, often play an integral role in a patient’s health care.  For example, the Privacy Rule allows covered entities to share information about the patient’s care with family members in various circumstances.  In addition, the Privacy Rule provides protections against the use of genetic information about the individual, which includes certain information about family members of the individual, for underwriting purposes.  OCR’s guidance on HIPAA and Same-sex Marriage addresses the effect of the 2013 Supreme Court decision regarding the Defense of Marriage Act (DOMA) on these provisions, making clear that spouses include both same-sex and opposite-sex individuals who are legally married, whether or not they live or receive services in a jurisdiction that recognizes their marriage.

OCR’s guidance on the Windsor decision may be found at: https://www.training-hipaa.net/hipaa-resources/