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HHS Addresses Treatment of Same-Sex Spouses Under HIPAA

Last month, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) issued guidance addressing the treatment of same-sex spouses under the HIPAA Privacy Rule in light of the Supreme Court’s decision in United States v. Windsor.

In Windsor, the Supreme Court held Section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional. Section 3 of DOMA had excluded same-sex marriages from recognition under federal law.

As a result of the Windsor ruling, legally married same-sex spouses are entitled to additional rights under several federal regulations, one of which is the HIPAA Privacy Rule ("Rule"). The Rule provides certain protections to family members of patients.  In its guidance, OCR clarifies that legally married same-sex spouses are family members for the purposes of the Rule, regardless of where they live. 

Specifically, OCR highlighted two relevant provisions of the Rule that apply to family members:

  • The Rule provides that a covered entity may provide family members with a patient’s protected health information (“PHI”) in certain circumstances, such as with the consent of the patient or in emergency situations. OCR clarified that legally married same-sex spouses are family members for the purposes of applying this provision.
  • The Rule also prohibits certain health plans from using or disclosing genetic information, including certain health information about family members of the patients. Such information includes genetic tests of a family member or the manifestation of a disease or disorder in a family member. OCR clarified that this protection extends to health information about legally married same-sex spouses.

OCR noted that it plans to issue additional guidance in the coming months to address same-sex spouses as personal representatives under the Rule. Stay tuned to the Foster Swift Health Care Law Blog for updates.

If you have any questions, please contact Nicole Stratton at nstratton@fosterswift.com.

Julie C. LaVille authored this article as a Law Clerk.

Categories: HIPAA, Privacy


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Congratulations to the attorneys of the Health Care practice group at Foster Swift Collins & Smith, PC for their inclusion in the Best Lawyers in America 2021 edition. Firm-wide, 44 lawyers were listed. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation and as lawyers are not required or allowed to pay a fee to be listed; inclusion in Best Lawyers is considered a singular honor. Health Care practice group members listed in Best Lawyers are as follows:

To see the full list of Foster Swift attorneys listed in Best Lawyers 2021, click here.