Defense of Marriage Act and HIPAA

The U.S. Supreme Court’s ruling regarding the Defense of Marriage Act (“DOMA”) in United States v. Windsor has impacted a number of rules and regulations including HIPAA.

HIPAA’s Privacy Rule allows care providers (as Covered Entities) to share information about a patient’s care with family members in various circumstances. With the Windsor ruling in mind, the US Department of Health and Human Services has issued important HIPAA-related guidance.

The guidance clarifies who is included as family members. Family members include spouses with the term including both same-sex and opposite-sex individuals who are legally married. This applies to all states and jurisdictions, whether or not they live or receive services in a jurisdiction that recognizes their marriage. The term family also includes the children in the relationship.

This applies for all aspects of HIPAA.


Practice management content

Health care practices may need to address the following – at a minimum:

  • Training updates for existing and new Workforce Members.
  • Communication of Windsor changes to vendors as needed.
  • A change in the process for the verification of the identity of a family member.
  • The collection of additional information for existing patients.
  • Forms may need to be changed to replace terms such as “husband” and “wife”.
  • The content and intended recipients of HIPAA-related notices may need to be changed.
  • The Notice of Privacy Practices content may also need to be changed.
  • Policy and Procedures document and definitions may need to be updated.
  • Determination as to whether training is needed to work-around systems (e.g. EMR) that have not yet been updated.

Contact with any questions and/or comments.