HHS Addresses the Windsor Ruling's Impact on HIPAA, Including GINA | Practical Law

HHS Addresses the Windsor Ruling's Impact on HIPAA, Including GINA | Practical Law

The Department of Health and Human Services (HHS) has issued guidance recognizing inclusion of same-sex marriage in the definition of "family member" under the HIPAA Privacy Rule, as a result of the Supreme Court's decision in United States v. Windsor. The guidance also addresses Windsor's impact on certain HIPAA provisions involving the use of genetic infomation, which were previously modified to reflect the Genetic Information Nondiscrimination Act (GINA).

HHS Addresses the Windsor Ruling's Impact on HIPAA, Including GINA

Practical Law Legal Update 0-581-6346 (Approx. 5 pages)

HHS Addresses the Windsor Ruling's Impact on HIPAA, Including GINA

by Practical Law Employee Benefits & Executive Compensation
Published on 18 Sep 2014 • USA (National/Federal)
The Department of Health and Human Services (HHS) has issued guidance recognizing inclusion of same-sex marriage in the definition of "family member" under the HIPAA Privacy Rule, as a result of the Supreme Court's decision in United States v. Windsor. The guidance also addresses Windsor's impact on certain HIPAA provisions involving the use of genetic infomation, which were previously modified to reflect the Genetic Information Nondiscrimination Act (GINA).
On September 17, 2014, the Department of Health and Human Services (HHS) issued guidance reflecting inclusion of same-sex marriage in the definition of "family member" under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule, as a result of the Supreme Court's decision in United States v. Windsor. In Windsor, the Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA), which defined the terms "spouse" and "marriage" for federal law as being solely between one man and one woman, was unconstitutional (see Legal Update, Supreme Court: DOMA Section 3 is Unconstitutional and Proposition 8 Proponents Lack Standing).
The Privacy Rule, which was enacted by HHS to implement HIPAA, regulates the use and disclosure of an individual's protected health information (PHI) (see Practice Note, HIPAA Privacy Rule). In certain provisions, the Privacy Rule refers to an individual's family members in addressing permitted disclosures of PHI.

Windsor's Impact on HIPAA Privacy, Including Changes Required under GINA

The guidance notes that the HIPAA definition of "family member" (45 C.F.R. § 160.103) expressly refers to the terms "spouse" and "marriage." For Privacy Rule purposes, as a result of Windsor:
  • The term "spouse" includes individuals in a valid same-sex marriage sanctioned by a state, territory or foreign jurisdiction, provided that, with regard to a foreign jurisdiction, a U.S. jurisdiction would recognize the marriage.
  • The term "marriage" includes both same-sex and opposite-sex marriages.
  • The term "family member" includes dependents of same-sex and opposite-sex marriages.
Adopting a rule of celebration, the guidance notes that the above terms apply to individuals who are legally married, regardless of whether the individuals live or receive services in a jurisdiction that recognizes their marriage.
The guidance also addresses two contexts under HIPAA in which the definition of family member is relevant. First, in the context of permitted uses and disclosures of PHI involving an individual's care and certain related notifications (45 C.F.R. § 164.510(b)), the guidance indicates that legally married same-sex spouses (regardless of where they live) are considered family members.
A second context involves uses and disclosures of genetic information for underwriting purposes (45 C.F.R. § 164.502(a)(5)(i)). As background, the Genetic Information Nondiscrimination Act of 2008 (GINA) added privacy protections for genetic information that required HHS to update the HIPAA privacy regulations to:
  • Clarify that genetic information is health information.
  • Prohibit group health plans and insurers from using or disclosing genetic information for underwriting purposes.
(See Legal Update, Final HIPAA Regulations Change Breach Notification Rules and Practice Note, GINA Compliance for Health and Welfare Plans.)
The guidance notes that under the HIPAA regulations, as amended to reflect GINA, most health plans are prohibited from using or disclosing genetic information for underwriting purposes. As a result, plans may not use information about either:
  • The genetic tests of an individual's family member.
  • The manifestation of a disease or disorder in an individual's family member.
After Windsor, these prohibitions include both:
  • The genetic tests of an individual's same-sex spouse.
  • The manifestation of a disease or disorder in an individual's same-sex spouse.

Practical Impact

This guidance is apparently the forerunner of additional guidance reflecting Windsor's impact on the HIPAA Privacy Rule. HHS indicates in the guidance that it plans to issue additional clarifications, through regulations or subregulatory guidance, addressing same-sex spouses as personal representatives under the Privacy Rule.
The Windsor ruling also may impact other aspects of HIPAA compliance aside from privacy, for example, HIPAA's special enrollment rules.