The federal agency charged with HIPAA enforcement says covered entities should treat persons in same-sex marriages in the same manner as the entities treat persons in other marriages.  The federal agency advice is similar to the advice a Wisconsin agency issued regarding persons in registered domestic partnerships.

Federal Guidance

On September 17, 2014, the United States Department of Health and Human Services Office for Civil Rights (“OCR”) issued guidance to assist entities covered by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) with regard to same-sex marriages. According to OCR, the guidance was developed to assist HIPAA covered entities in understanding how the U.S. Supreme Court’s decision in U.S. v. Windsor may affect HIPAA Privacy Rule obligations.

OCR explains that the Privacy Rule “contains several provisions that recognize the integral role that family members, such as spouses, often play in a patient’s care.”

The guidance explains that the U.S. Supreme Court – in its 2013 Windsor decision – held Section 3 of the Defense of Marriage Act (“DOMA”) to be unconstitutional, and, in light of the Windsor decision, “covered entities (as business associates, as applicable) must consider the following regarding lawfully married same-sex spouses and same-sex marriage”:

1. Definitions. To the extent such limitation(s), change(s) or restriction(s) may affect Business Associate’s Use, Disclosure or access to PHI, Covered Entity shall notify Business Associate of any: (a) limitation(s) in Covered Entity’s notice of privacy practices pursuant to 45 C.F.R. § 164.520; (b) changes in, or revocation of, the permission by an Individual to Use or Disclose his or her PHI; and (c) restriction(s) on the Use or Disclosure of PHI that Covered Entity has agreed to or is required to abide by pursuant to 45 C.F.R. § 164.522.

2. Use and Disclosure of Health Information. HIPAA’s standard regarding use and disclosure of health information for involvement in an individual’s care and notification purposes at 45 C.F.R. § 164.510(b) permits covered entities, under certain circumstances, to share an individual’s health information with a family member of the individual. OCR’s guidance clarifies that legally married same-sex spouses – regardless of where they live – are family members for purposes of this standard.

3. Genetic Information. HIPAA’s standard regarding use of genetic information for underwriting purposes at 45 C.F.R. § 164.502(a)(5)(i) prohibits most health plans from using or disclosing genetic information for underwriting purposes. Such health plans are prohibited from using information regarding genetic tests of a family member or the manifestation of a disease/disorder in a family member in making underwriting decisions about an individual. OCR’s guidance clarifies that this standard includes genetic tests of or manifestation of a disease/disorder in a same-sex spouse of the individual.

OCR also noted that in the coming months it intends to issue additional clarifications through guidance or rulemaking to address same-sex spouses as personal representatives under the HIPAA Privacy Rule.

Wisconsin Guidance

Although the status of legal recognition for same-sex marriages in Wisconsin in still in flux, Wisconsin has provided protections for same-sex couples who have registered as “domestic partners.”  2009 Wisconsin Act 28 created Wis. Stat. § 770, relating to domestic partnership and amended numerous provisions of the Statutes to provide rights and protections to those who registered as domestic partners, including in the realm of health care.

The Department of Health Services Division of Quality Assurance issued an update on the law summarizing the rights of domestic partners in health care settings relating to accompaniment or visitation, resident rights, and consent to admission to certain facilities.

Further, Wis. Stat. § 146.819(5), which defines “person authorized by the patient” in matters of patient records, was expanded to recognize domestic partners in the same manner as spouses.  Likewise, as it relates to treatment records, Wis. Stat. 51.30 was also amended to give domestic partners the same access to records that would be available to spouses.

In general, it is good practice to know who your patient wants involved in his or her care—and to whom the patient would prefer that you did—or did not—share information.  Maintaining documentation of the patient’s preferences may avoid misunderstandings, conflicts, or reports of violations of state or federal privacy regulations.