We’ve all signed the HIPAA Notice of Privacy Practices, when we visit our doctor, informing us of our privacy rights as it relates to our medical records. Well, the same federal law that has doctors asking us to sign those papers also imposes penalties on doctors and hospitals who make unauthorized disclosures of protected health information about their patients. So, health care providers are not going to be discussing the medical condition of a patient to the families of the patient or patient’s lawyer. These restrictions on disclosing information can lead to problems when families and lawyers are trying to figure out whether the patient is disabled for purposes of durable powers of attorney, advance medical directives, trusts, employment contracts, and other kinds of contracts and documents.
A lawyer who is experienced in estate planning will understand how HIPAA regulations relating to personal representatives and valid authorizations apply to powers of attorney and other estate planning documents and procedures.
The term, Protected Health Information, is very broad. It’s an important term, however, it’s used in Durable Powers of Attorney, Health Care Powers of Attorney, Advance Directives and even Fiduciary Powers in Wills and Trusts and Guardianship Orders and Orders to Show Cause, so it’s important that it is defined accurately. Health care providers are very concerned that they might violate HIPAA and incur various penalties. Predictably, the reaction of health care providers is to be extremely cautious about disseminating Protected Health Information. You can expect that Health Care Powers of Attorney and Advance Directives will be carefully scrutinized by health care providers. Hospitals, doctors and their attorneys will be looking for specific language which authorizes the provider to disclose Protected Health Information to a designated Health Care Representative.
Most well drafted Health Care Powers of Attorney and Advance Directives are legally sufficient to authorize your doctor to transmit your Protected Health Information to your designated Health Care Representative. As a practical matter, however, the health care provider may not know what is and is not legally sufficient. Given the penalties at stake, the health care provider will likely err on the side of caution and not provide any Protected Health Information to a Health Care Representative unless the Health Care Power of Attorney or Advance Directive states specifically that Protected Health Information may be transmitted under the HIPAA privacy rules.
For estate planning purposes, HIPAA more often restricts the flow of helpful information than conceals private information. The issue becomes how does one grant to another the authority to obtain information while satisfying the provisions of HIPAA.
Your attorney can add provisions to their Durable Powers of Attorney, both Medical and Financial, to the Fiduciary Powers article in Wills and Trusts, and possibly to all Guardianship Orders to Show Cause, authorizing or releasing certifying physicians. An attorney who understands the language required for HIPAA compliance can help you draft your Power of Attorney, Advance Directives and other documents related to Wills and Guardianship.