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. At 45 CFR 160.103, the Privacy Rule includes the terms spouse and marriage in the definition of family member.
On September 17, 2014, the US Department of Health and Human Services Office for Civil Rights (OCR) issued guidance to help HIPAA covered entities (and business associates, as applicable) understand the privacy implications of the 2013 Supreme Court decision in United States v. Windsor and how that may affect certain of their Privacy Rule obligations.
In United States v. Windsor, the Supreme Court held section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. Section 3 of DOMA had provided that federal law would recognize only opposite-sex marriages.
In response to the Supreme Court decision on same-sex marriage, OCR’s guidance on HIPAA and Same-sex marriage clarifies that, under the Privacy Rule,
- “Spouse” includes both same-sex and opposite-sex individuals who are legally married, regardless of whether or not they live in or receive services in a jurisdiction that recognizes their marriage
- The term “marriage” includes both same-sex and opposite-sex marriages, and “family member” includes dependents of those marriages
For more information, download a PDF copy of the HHS OCR guidance document:
HIPAA and Same-sex Marriage: Understanding Spouse, Family Member, and Marriage in the Privacy Rule.
In the coming months, OCR intends to issue additional clarifications through guidance or to initiate rulemaking to address same-sex spouses as personal representatives under the Privacy Rule.