Michael Kline and Elizabeth Litten were quoted in the Inside the Joint Commission article "DOMA's Downfall to Affect Compliance with HIPAA, Employment Practices." While the full text can be found in the August 26, 2013, issue of Inside the Joint Commission, a synopsis is noted below.
Following the Supreme Court ruling against a key provision in the Defense of Marriage Act (DOMA), which left the definition of marriage to the individual states, you should expect to make changes to your HIPAA and employment practices, says Michael Kline.
Hospitals will now be able to more easily disclose information with a patient's same-sex spouse since that partner can now be better identified. "It creates more protection for you," says Kline.
Under HIPAA, personal representatives have virtually the same access, restriction and other rights over a patient's protected health information (PHI) as the patient does, according to Kline.
It will now be more confusing to determine whether a same-sex spouse is entitled to disclose or receive PHI of a child since both spouses may now assert parental rights, but they are not both automatically the "parent" and often must formally adopt the child, Kline says.
Kline suggests you make sure your forms are clear to comply with DOMA, because that general term "spouse" may not be recognized as a spouse in another state.
Kline advises that measures should be taken when disclosing PHI to or with agreement from same-sex spouses. "If there's any doubt, get an authorization," he warns.
Make sure staff are educated about any state law changes, Kline says, as spouses in states where same-sex marriage is recognized will have increased access to their partners' records.
Be sure to check your individual state law for inconsistencies with HIPAA, warns Elizabeth Litten, as state law will control not only who is a "spouse," but also the extent to which information can be disclosed.
Be prepared for changes in state law, Kline warns. "This decision has a ripple effect that people never considered."
This story was also featured in Medical Practice Compliance Alert.
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