Why You Should Ask Your Attorney about a HIPAA Authorization when Contemplating a Durable Medical Power of Attorney
The history and creation of HIPAA
Most people would agree that their private health information, including records of diagnoses, medication prescriptions and office visits, are incredibly sensitive material; the exposure of which could be potentially problematic and personally devastating. Leakage of health records could lead to a number of calamitous results like public embarrassment, but could also lead to more catastrophic problems like identify theft. In 1996, the legislature passed what is known as The Health Insurance Portability and Accountability Act of 1996. This important legislation is more commonly known as HIPAA. HIPAA created a much-needed industry-wide security standard for the health care field to protect sensitive health care information by protecting the privacy of individuals’ health and medical information with comprehensive privacy and security laws.
Personal representatives may request and receive protected health care information
Despite an overwhelming need for privacy when it comes to who can view our medical records, there sometimes exists a need for an individual to have a personal representative who can request or receive vital health information regarding the individual. One example is that the parents (or legal guardian) of a child may obtain medical records and health information regarding their minor child. As a child’s representative, he or she is also able to make healthcare decisions affecting the child. A medical power of attorney is another example of a circumstance where the personal representative may request or receive protected medical information.
A durable medical power of attorney may not be enough to allow a personal representative access to vital medical and health information
As discussed in a previous blog entry [http://www.alavibroyles.com/1/post/2013/09/a-durable-power-of-attorney], those with a valid medical power of attorney can make medical decisions on behalf of and for a named individual. This person is also considered the individual’s personal representative, which means that the representative may generally request and receive HIPAA protected health information. The rationale behind this is that the representative making the important health care decisions has all of the information needed in order to make the tough health care decisions in the best interest of the individual he or she is representing.
However, it is important to understand that HIPAA does allow health care providers to deny personal representatives access to an individual’s medical records or health information in certain circumstances. These circumstances include when the health provider has reason to believe the personal representative is abusive or may endanger the health of the individual or when a health care provider has a policy allowing dissemination of protected medical information only to the insured individual or those with a HIPAA Authorization.
Importance of obtaining a HIPAA Authorization in addition to a medical power of attorney
A HIPAA Authorization is a separate legal document that allows a personal representative to obtain protected medical information of an individual where a medical power of attorney may not be sufficient to grant access. Because a medical power of attorney may not be sufficient on its, it is essential to execute a HIPAA Authorization in addition to a medical power of attorney when planning for future incapacity.
Many people overlook the importance of executing a HIPAA Authorization because they are under the belief that a medical power of attorney will allow the representative access to their medical records and health information in the case of incapacity. While this belief may be true in some cases, there is still a looming risk that the lack of a HIPAA Authorization could cause major problems down the road for the personal representative when he or she tries to make health care decisions for the individual.
When planning for future incapacity, it is important to not only discuss a durable medical power of attorney but also a HIPAA Authorization with your attorney. The attorneys at Alavi & Broyles have experience in executing all necessary instruments in order to ensure that the client’s personal representative is in the best position he or she can be in when making the tough but necessary medical decision.
Max Alavi focuses on assisting clients establish effective and secure vehicles for passing their assets to their loved ones and protecting their families from the uncertainty and expense associated with probate and testamentary guardianship matters. He is also dedicates a significant portion of his practice to complex probate matters, trust administration and litigation of contested trusts.
Max Alavi, Attorney at Law, APC has 6 locations in Orange County and Los Angeles County, California