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    HIPAA Regulations: General Provisions: Definitions - Family Member - § 160.103

    As Contained in the HHS HIPAA Rules

    HIPAA and Same Sex Marriage
    HHS Guidance in understanding spouse, family member and marriage

     

    HHS Regulations as Added by the January 2013 Amendments
    General Provisions: Definitions - Administrative Family Member - § 160.103

     

    Family member means, with respect to an individual:

    (1) A dependent (as such term is defined in 45 CFR 144.103), of the individual; or

    (2) Any other person who is a first-degree, second-degree, third-degree, or fourth-degree relative of the individual or of a dependent of the individual. Relatives by affinity (such as by marriage or adoption) are treated the same as relatives by consanguinity (that is, relatives who share a common biological ancestor). In determining the degree of the relationship, relatives by less than full consanguinity (such as half-siblings, who share only one parent) are treated the same as relatives by full consanguinity (such as siblings who share both parents).

    (i) First-degree relatives include parents, spouses, siblings, and children.

    (ii) Second-degree relatives include grandparents, grandchildren, aunts, uncles, nephews, and nieces.

    (iii) Third-degree relatives include great-grandparents, great-grandchildren, great aunts, great uncles, and first cousins.

    (iv) Fourth-degree relatives include great-great grandparents, great-great grandchildren, and children of first cousins.

     

    HHS Description and Commentary From the January 2013 Amendments
    General Provisions: Definitions - Family Member

     

    Proposed Rule

    The term “family member” is used in the definition of “genetic information” in GINA to indicate that an individual’s genetic information also includes information about the genetic tests of the individual’s family members, as well as family medical history.

    Section 105 of GINA states that the term “family member” shall have the meaning given such term in section 2791 of the PHSA (42 U.S.C. 300gg-91), as amended by GINA section 102(a)(4), which defines “family member” to mean, with respect to any individual: (1) a dependent (as such term is used for purposes of section 2701(f)(2) of the PHSA, 42 U.S.C. 300gg(f)(2)) of such individual; or (2) any other individual who is a first-degree, second-degree, third-degree, or fourth-degree relative of such individual or of a dependent of the individual. Section 2701(f)(2) of the PHSA uses the term “dependent” to mean an individual who is or may become eligible for coverage under the terms of a group health plan because of a relationship to the plan participant.

    The Department proposed to incorporate GINA’s definition of “family member” into the Privacy Rule. The proposed rule also clarified within the definition that relatives by affinity (such as by marriage or adoption) are to be treated the same as relatives by consanguinity (that is, relatives who share a common biological ancestor) and that, in determining the degree of relationship, relatives by less than full consanguinity (such as half-siblings, who share only one parent) are treated the same as relatives by full consanguinity (such as siblings who share both parents). The NPRM explained that this broad interpretation of “family member” was consistent with GINA’s legislative history, which suggests that the term “family member” is to be broadly construed to provide the maximum protection against discrimination.18 In addition, the Department proposed to include in the definition of “family member” non-exhaustive lists of persons who are first-, second-, third-, or fourth-degree relatives. Finally, within the definition of “family member,” the Department proposed to refer to the definition of “dependent” contained in the implementing regulations at 45 CFR 144.103 rather to the PHSA directly.

    Overview of Public Comments

    One commenter expressed support for including relatives by affinity and by less than full consanguinity, agreeing that this interpretation is consistent with Congressional intent and provides the most privacy protection for individuals.

    This commenter also was supportive of including non-exhaustive lists of persons who are first-, second-, third-, and fourth-degree relatives to add clarity to the definition.

    Final Rule

    As we received only support with regard to the definition of “family member,” the final rule adopts without modification the definition of “family member” proposed in the NPRM. This definition also is consistent with the definition found in the implementing regulations for sections 101-103 of GINA and with which compliance is already required by most health plans.