HHS Provides Guidance on HIPAA Privacy Rule and Same Sex Marriages

September 18, 2014 at 8:57 am | Posted in Defense of Marriage Act (DOMA), HIPAA, Marriage, Same Sex Marriage | Leave a comment
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On September 17th HHS formally announced that in light of the Supreme court’s decision in United States v. Windsor. HIPAA privacy protection rights and privileges were expanded to same sex married couples regardless of where they live. The announcement follows:

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.  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 an individual, which includes certain information about family members of the individual, for underwriting purposes.  This guidance addresses the effect of the 2013 Supreme Court decision regarding the Defense of Marriage Act (DOMA) on these provisions.

In United States v. Windsor, the Supreme Court held section 3 of DOMA to be unconstitutional. Section 3 of DOMA had provided that federal law would recognize only opposite-sex marriages.  In light of the Windsor ruling, covered entities (and business associates, as applicable) must consider the following regarding lawfully married same-sex spouses and same-sex marriage.

At 45 CFR 160.103, the Privacy Rule includes the terms spouse and marriage in the definition of family member.  Consistent with the Windsor decision, the term spouse includes individuals who are in a legally valid same-sex marriage sanctioned by a state, territory, or foreign jurisdiction (as long as, as to marriages performed in a foreign jurisdiction, a U.S. jurisdiction would also recognize the marriage).  The term marriage includes both same-sex and opposite-sex marriages, and family member includes dependents of those marriages.  All of these terms apply to individuals who are legally married, whether or not they live or receive services in a jurisdiction that recognizes their marriage.

  • The definition of a family member is relevant to the application of §164.510(b) Standard: Uses and disclosures for involvement in the individual’s care and notification purposes.  Under certain circumstances, covered entities are permitted to share an individual’s protected health information with a family member of the individual.  Legally married same-sex spouses, regardless of where they live, are family members for the purposes of applying this provision.
  • The definition of a family member is also relevant to the application of §164.502(a)(5)(i), Use and disclosure of genetic information for underwriting purposes.  This provision prohibits health plans, other than issuers of long-term care policies, from using or disclosing genetic information for underwriting purposes. For example, such plans may not use information regarding the genetic tests of a family member of the individual, or the manifestation of a disease or disorder in a family member of the individual, in making underwriting decisions about the individual.  This includes the genetic tests of a same-sex spouse of the individual, or the manifestation of a disease or disorder in the same-sex spouse of the individual.

This guidance was developed to assist covered entities in understanding how the Windsor decision may affect certain of their Privacy Rule obligations.  In the coming months, the Office of Civil Rights (OCR) intends to issue additional clarifications through guidance or to initiate rulemaking to address same-sex spouses as personal representatives under the Privacy Rule.

HHS announces first guidance implementing Supreme Court’s decision on the Defense of Marriage Act: Application To Medicare, Nursing Homes, and Same Sex Married Couples Regardless of Where They Live

August 29, 2013 at 4:57 pm | Posted in Defense of Marriage Act (DOMA), Health and Human Services, Same Sex Marriage | Leave a comment
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Today, the Department of Health and Human Services (HHS) issued a memo clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives.  This is the first guidance issued by HHS in response to the Supreme Court ruling in Windsor v. United States, which held section 3 of the Defense of Marriage Act unconstitutional.

“HHS is working swiftly to implement the Supreme Court’s decision and maximize federal recognition of same-sex spouses in HHS programs,” said HHS Secretary Kathleen Sebelius.  “Today’s announcement is the first of many steps that we will be taking over the coming months to clarify the effects of the Supreme Court’s decision and to ensure that gay and lesbian married couples are treated equally under the law.”

“Today, Medicare is ensuring that all beneficiaries will have equal access to coverage in a nursing home where their spouse lives, regardless of their sexual orientation,” said Centers for Medicare & Medicaid Services (CMS) Administrator Marilyn Tavenner.  “Prior to this, a beneficiary in a same-sex marriage enrolled in a Medicare Advantage plan did not have equal access to such coverage and, as a result, could have faced time away from his or her spouse or higher costs because of the way that marriage was defined for this purpose.”

Under current law, Medicare beneficiaries enrolled in a Medicare Advantage plan are entitled to care in, among certain other skilled nursing facilities (SNFs), the SNF where their spouse resides (assuming that they have met the conditions for SNF coverage in the first place, and the SNF has agreed to the payment amounts and other terms that apply to a plan network SNF).  Seniors with Medicare Advantage previously may have faced the choice of receiving coverage in a nursing home away from their same-sex spouse, or dis-enrolling from the Medicare Advantage plan which would have meant paying more out-of-pocket for care in the same nursing home as their same-sex spouse.

Today’s guidance clarifies that this guarantee of coverage applies equally to all married couples.  The guidance specifically clarifies that this guarantee of coverage applies equally to couples who are in a legally recognized same-sex marriage, regardless of where they live.

HHS Secretary Comments on Supreme Court Ruling on Defense of Marriage Act

June 27, 2013 at 9:26 am | Posted in Defense of Marriage Act (DOMA), Health and Human Services, Same Sex Marriage | Leave a comment
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Yesterday, HHS Secretary Kathleen Sebelius gave a statement on the Supreme Court’s Ruling on the Defense of Marriage Act (DOMA).

Today’s Supreme Court decision finding the Defense of Marriage Act unconstitutional is a victory for equality, which is a core belief of this administration.

It is also a victory for families, especially those children whose parents’ legal same sex marriages can now be recognized under federal law.

As a result of today’s ruling, the federal government is no longer forced to discriminate against legally married same sex couples.

The Supreme Court’s decision on DOMA reaffirms the core belief that we are all created equal and must be treated as equal.

The Department of Health and Human Services will work with the Department of Justice to review all relevant federal statutes and ensure this decision is implemented swiftly and smoothly.

Supreme Court Hears Argument Today On Challenges to Defense of Marriage Act, Constitutionality of Ban on Gay Marriages – Decision Could Impact Future Employee Benefit Issues

March 26, 2013 at 9:54 am | Posted in Defense of Marriage Act (DOMA) | Leave a comment
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The United Sates Supreme Court will have oral argument today on several issues concerning the constitutionality of the Defense of Marriage Act (“DOMA”) as well as a state’s ability to prohibit gay marriage. If the Supreme Court finds that DOMA is unconstitutional, employers and plan sponsors will need to revisit, for example, the issues of COBRA rights and imputed income. Similarly, additional issues of employee plus one or family coverage will need to be reassessed if the Court finds that a state’s ban on same gender marriage violates the equal protection clause. What follows is a summary article on possible options for the Supreme Court that appeared in March 25th Los Angeles Times.

WASHINGTON — Four years ago, many gay rights advocates shook their heads when super-lawyers Theodore B. Olson and David Boies announced they would challenge California’s ban on gay marriages in federal court and take the case all the way to the U.S. Supreme Court.

It was too risky, the skeptics said. Voters in state after state were rejecting same-sex marriage, and no federal judge had said such bans were illegal. One liberal legal scholar called the lawsuit a “Hail Mary” pass.

But now that Proposition 8’s ban on gay marriage is set for a hearing Tuesday before the Supreme Court, the lawyers and activists who started the case think they may be on the verge of a historic victory. Even the early doubters are hopeful. “We think the time is right,” said Los Angeles lawyer Theodore J. Boutrous Jr., Olson’s partner on the case. “Everything seems to be breaking in favor of marriage equality.”

Olson and Boies are urging the court to rule that gays and lesbians have an equal right to marry under the Constitution, a decision that would not only strike down the California ban but could make gay marriage legal nationwide. That is “the right result,” Boies said last week. “There is no rational or legitimate reason for the government to deny marriage to these loving couples.”

That may go too far for the court’s majority. The conventional wisdom among legal experts is that the court will stop short of declaring that gays and lesbians have a right to marry nationwide. A narrow ruling voiding Proposition 8 would bring gay marriage to California, but it would not force a change in states where strong opposition to the idea remains. Nine states and the District   of Columbia authorize same-sex marriages.

The justices have given themselves a long menu of options in the California case. That suggests that at least some of them are determined to avoid a broad decision.

Chief Justice John G. Roberts Jr. often looks for a narrow way to decide a major case. He also focuses on the procedural rules, and there is some doubt over whether the sponsors of Proposition 8 have “standing” to represent the state of California in the case. The sponsors of the gay marriage ban are private citizens, and their opponents say they do not have a personal stake in the case that would give them legal standing.

If the high court were to punt for procedural reasons in the Proposition 8 case, most lawyers say, California’s gay marriage ban would fall as a result of U.S. District Judge Vaughn Walker’s ruling that declared it unconstitutional. Others say that a procedural ruling might mean the only winners would be the two gay couples who filed the suit to overturn the ban.

In another scenario, the court might follow a procedural finding on Proposition 8 with a major decision on the federal Defense of Marriage Act, the case to be heard Wednesday. This creates the possibility of a ruling that the government cannot discriminate against gays and lesbians and deny equal benefits to gay couples, but it would not mandate that all states allow gay marriage.

Some legal scholars, citing recent public opinion polls and votes in several states, said it was unlikely that the court would completely shut the door on gay marriage. Harvard Law School professor Michael J. Klarman, author of a recent book on the legal fight over same-sex unions, said the justices would not want to put their names to an opinion that would be seen over time as narrow-minded.

The menu of options facing the court could complicate the oral arguments this week and make it especially hard to forecast the outcome, which is likely to be released in June. They also may prove crucial if the justices find themselves closely split, as they were last year in the case on President Obama’s healthcare law. Then, Roberts found a narrow option for upholding the Affordable Care Act that appealed to him alone, and the four liberal justices opted to join him.

This time, the four liberal justices are likely to take their cue from Justice Anthony M. Kennedy. If he is willing to strike down Proposition 8 narrowly or rule broadly in favor of same-sex marriage, they would probably join him to make a majority.

The court’s seniority system puts Kennedy in position to write the majority opinion in that event. When the justices meet in their private conference late this week, they will vote on whether to uphold or reverse the U.S. 9th Circuit Court’s decision striking down Proposition 8. Roberts speaks first, followed by Justice Antonin Scalia. Both are likely to vote to reverse the 9th Circuit’s decision.

Kennedy, 76, a California native, speaks next. If he agrees with the 9th Circuit that Proposition 8 should be struck down, he would take charge of writing the court’s opinion, assuming the four liberal justices — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — agreed with him.

Kennedy is a libertarian conservative, and he has written the court’s two strongest opinions supporting gay rights. In 1996, the court faced a Colorado voter initiative that barred all civil rights protections for gays and lesbians. Kennedy spoke for the court in striking down the amendment on the grounds it treated gays as second-class citizens. Ten years ago, he wrote the court’s opinion striking down sex laws in Texas and elsewhere that targeted gays.

A few months later, judges in Massachusetts cited Kennedy’s opinion as a precedent for the first ruling giving gays and lesbians a right to marry.

Kennedy’s opinions also persuaded Olson and Boies they should take the marriage equality issue to the Supreme Court. And some of the California gay rights lawyers who were dubious four years ago acknowledge that they see it differently now.

“Things have changed remarkably,” said Jon Davidson, legal director for Lambda Legal. “We are in a very different world today.”

Kate Kendell, director of the National Center for Lesbian Rights, said the lawsuit challenging Proposition 8 had been “game-changing.… I am feeling very positive about where I think the court is going to end up.”

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