The HIPAA Privacy Rule — Remember all those new forms you had to fill out at your doctors’ offices starting several years ago? The Privacy Rule of the Health Insurance Portability and Accountability Act (hereinafter “HIPAA”) was passed by Congress in 2003, and it provides distinct regulations about the privacy of your Protected Health Information (hereinafter “PHI”) and what PHI certain healthcare providers, health plans and health care clearinghouses can or cannot share with others. The forms you signed indicated what procedures that particular office used to comply with HIPAA.
If these entities violate the disclosure rules, they are subject to heavy fines and potential criminal charges. As a result, many providers have become extra careful to whom they release your PHI. For example, many entities now hesitate or even refuse to share a patient’s PHI with anyone else besides the patient.
Effect on Your Estate Planning Documents – Additionally, while many patients (or their representatives) present a previously-signed Medical Power of Attorney or Advance Medical Directive that grants the patient’s health care decision-making authority to a representative, some hospitals still refuse to honor them if they do not contain the specific language that allows them to release your PHI to your representative. This is most often the case in Powers of Attorney or Advance Medical Directives signed before the Privacy Rule was passed in 2003, but can sometimes even occur in ones drafted thereafter as well. It is not difficult to imagine the greatly increased expenses that could occur as a result, medical and otherwise, during a particularly stressful time.
Solutions – Most estate planning practitioners have handled these issues in one of two ways. First, they will either update an existing Advance Medical Directive or Healthcare Power of Attorney or draft a new one that takes HIPAA requirements into consideration. The other approach is the creation of a “HIPAA Authorization” form, which would specifically allow the provider to share your PHI with your designees. In any event, make sure that these matters are taken into account when either updating your documents or having new ones prepared so that your designated representative will have the freedom to act quickly and in accordance with your wishes at the appropriate time.