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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 22 attorneys engaged exclusively in employee benefits, estate planning and employment law. Six of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104







October 10, 2014


 Health and Welfare Law Alert





HHS Issues Guidance on How the Supreme Court's Windsor Decision Impacts HIPAA Privacy Rule




HHS's Office of Civil Rights ("OCR") has issued guidance to help covered entities (e.g., group health plans and health care services providers) understand how the Supreme Court's decision in United States v. Windsor regarding the Defense of Marriage Act ("DOMA") affects certain provision of the HIPAA Privacy Rule and the Genetic Information Nondiscrimination Act ("GINA").


Background. In 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.


The HIPAA Privacy Rule contains several provisions that recognize the integral role that spouses have in a patient's health care. In particular, the Privacy Rule allows covered entities to share information about the patient's care with family members under various circumstances. In addition, GINA contains several provisions that prohibit the use of genetic information of an individual's family members for underwriting purposes.


Guidance. In the wake of Windsor, OCR states that, for purposes of the HIPAA Privacy Rule, the term "spouse" now includes individuals who are in a legally valid, same-sex marriage sanctioned by a state, territory, or foreign jurisdiction. In addition, the term "marriage" includes both same-sex and opposite-sex marriages, and the term "family members" includes dependents of those marriages. OCR further clarifies that these terms apply to individuals who are legally married, regardless of whether they live, or receive services, in a jurisdiction that recognizes their marriage.


Under the Privacy Rule, covered entities are permitted to disclose an individual's protected health information to the individual's family member under certain specified circumstances. Accordingly, OCR has indicated that legally married, same-sex spouses are family members for purposes of applying these standards.


The definition of a family member is also relevant to the provisions in GINA that relate to the use and disclosure of genetic information for underwriting purposes. For example, GINA prohibits health plans from using and disclosing genetic information for underwriting purposes. Thus, a health plan is prohibited from using the genetic information of an individual's family member in making underwriting decisions about the individual. OCR's guidance clarifies that this prohibition extends to the genetic information of a same-sex spouse of the individual.


Action Steps for Covered Entities. Covered entities are advised to incorporate OCR's guidance into their policies and procedures for the use and disclosure of protected health information. Although not covered by this particular guidance, OCR has indicated that it will publish future guidance to address the issue of same-sex spouses as personal representatives under the HIPAA Privacy Rule. 




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.