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.

New Mexico Supreme Court Recognizes Same Sex Marriage

December 23, 2013 at 12:00 pm | Posted in Same Sex Marriage | Leave a comment
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The New Mexico Supreme Court announced last week in Griego v. Oliver that New Mexico “is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.” The Supreme Court directed that all state statutes, rules, regulations or the common law that refer to “husband, wife, spouse, family, immediately family, dependent, next of kin, widow, widower or any other word, which, in context, denotes a marital relationship, the same shall apply to same-gender couples who choose to marry.”  The Court also ordered that gender-neutral language be used in New   Mexico’s statutory marriage license application form and that “‘civil marriage’ shall be construed to mean the voluntary union of two persons to the exclusion of all others.” Finally, it held that “all rights, protections, and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples.”

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.

DOL ANNOUNCES FMLA SAME SEX MARRIED COUPLE GUIDANCE: FMLA Available To Married Same Sex Couple Residing In A State That Recognizes Same Sex Marriage But Not Available If The Same Couple Resides In A State That Does Not Recognize Same Sex Marriage

August 20, 2013 at 9:12 am | Posted in Department of Labor, FMLA, Same Sex Marriage | Leave a comment
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Last week, the Department of Labor released updated guidance outlining the basis for taking FMLA leave and defined “spouse,” for FMLA purposes as:

Spouse: Spouse means a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.

What Is The Practical Impact of the Guidance? 

An employer located in a state that does not recognize same sex marriage does not have to grant FMLA leave to a same sex married employee to care for that employee’s same sex spouse if the same sex married couple do not reside in a state that recognizes same sex marriage.  There is nothing in the DOL guidance, however, that precludes an employer in the situation above from having its own internal corporate leave policy allowing for job and benefits protected leave for a same sex spouse.  Until there is further judicial review, there will be disparate treatment of same sex married couples for FMLA leave purposes that will turn on their place of residence.

A copy of the FMLA Fact Sheet #28F: Qualifying Reasons for Leave under the Family and Medical Leave Act can be found here: DOL Updated Fact Sheet #28F: Qualifying Reasons for Leave under the FMLA (PDF)

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