King v. Burwell understandably took the attention of the health care industry a couple of weeks ago when it upheld a key component of the Affordable Care Act. A day later, however, the Supreme Court released another decision that may have a more significant going-forward impact on the health care industry: the Obergefell decision, which declares that gay individuals have a right under the 14th Amendment and Equal Protection Clause of the U.S. Constitution to marry and to have the marriages recognized by every state. This landmark decision will require the industry to assess whether change is needed to manage many issues relating to gay patients and their partners under state laws.  

Obergefell and Health Care Laws

Recognizing that States confer special benefits to married couples “to protect and nourish the union,” Justice Anthony Kennedy in the majority opinion listed a series of marital status rights, benefits, and responsibilities, including hospital access, medical decision making authority, rights and benefits of survivors, birth and death certificates, and health insurance, as well as child custody, support, and visitation rules. According to Justice Kennedy, to the extent the State, through its lawmaking authority, has contributed to the fundamental character of the marriage right in these areas, there is no difference between same- and opposite-sex couples.

Health care providers and insurers are subject to many state and federal laws that recognize the status of married individuals with respect to certain privileges, recognitions, and benefits. Often, providers adopt specific policies and procedures to further implement these requirements in the operation of their facilities and businesses. While Justice Kennedy is clear on the end result that there be no difference between same-sex and opposite-sex marriages, the path to that end will require a plan and process for change by those in the health care industry.  The first step is a review of state laws specific to marriage as it relates to health care and an analysis of how those laws will apply going forward. In this post, we touch on three that struck us as requiring immediate attention.

Surrogate Decision Making

Health care surrogate statutes are one example. Under these statutes, if an incapacitated patient has not designated a surrogate decision maker, the spouse usually is recognized as the primary individual authorized to make health care treatment decisions for the incapacitated patient. A close friend has lower priority, often after the patient’s parents and siblings. Prior to Obergefell, in states that didn’t recognize marriage between same-sex couples, this often meant that gay partners in committed relationships – even those who may have been married in another state – did not have the same legal authority to make medical decisions as a spouse, and the patient’s parents or siblings would be given priority. Now, a health care provider may need to give deference to the patient’s spouse without regard to gender, even in a state that has not previously recognized same-sex marriages and regardless of whether a patient’s parents or siblings acknowledge the marriage. In states where this may be a change in the application of the law, providers should consider changes to their policies and procedures and give updated education to physicians and staff.

Confidentiality Provisions

The Office of Civil Rights for the Department of Health and Human Services issued guidance last year on HIPAA disclosures to family members. The guidance stated:  “The term marriage includes both same-sex and opposite-sex marriages, and family member includes the dependents of those marriages.”  According to OCR, “these terms apply to individuals who are legally married, whether or not they live or receive services in a jurisdiction that recognizes marriage.”  However, HIPAA does not pre-empt contradictory provisions of state privacy laws which are more restrictive than HIPAA, which meant that this guidance may have been effectively irrelevant in some states. Presumably, the Obergefell decision would result in the same interpretation of state laws as set forth in the OCR guidance, although it is unclear whether change in the application of state law will be self-executing without further legislative or executive affirmation.

Birth Certificates

The birth certificate forms prescribed in many states provide for the designation of a mother and father and do not provide for two same-sex parents, neither of whom may be the birth mother. California, which recognized same-sex marriages beforeObergefell was decided, rescinded and replaced Health & Safety Code § 102425, effective January 1st of this year, to provide for the name, birthplace, and date of birth “of each parent,” who may or may not be the birth mother. The parent can choose whether he or she wants to be identified as the child’s father, mother, or gender-neutral “parent” on the official certificate. As the states generally determine the form and content of birth certificates, providers may need to follow the proscribed form, unless changed by the state to accommodate same-sex parent designations.

Moving Forward

The Obergefell decision will undoubtedly raise questions within health care as it relates to gay and lesbian patients and insureds, and the above discussion is by no means an exhaustive look at the health care laws or industry practices that may be impacted. We expect that several states will need to review and revise (or at least provide guidance on) many existing health industry-related statutes and regulations to ensure that marital status protections are provided to all married couples. Of course, law is not the only matter that requires attention. Health care providers and insurers should review internal policies and procedures and consider whether changes are appropriate or necessary. Religious-affiliated hospitals may have additional challenges to the extent that their religious doctrine contradicts certain changes.

One week, two landmark cases, and a whole lot to do.