PRIVACY OF MEDICAL INFORMATION - HIPAA

     If you have been to see a doctor recently, or to a hospital or health care facility you have discovered a wide array of forms dealing with something called HIPAA. HIPAA is the Health Insurance Portability and Accountability Act of 1996 which was signed into law in August 1996 but went into effect April 14, 2003 initiating waves dealing with the privacy and release of your medical information and records.

What is HIPPA?

     HIPAA contains privacy provisions to insure the integrity and confidentiality of health care information to protect the privacy and confidentiality of a patient’s personal health information from unauthorized disclosure. This legislation applies to virtually every physician, nurse, pharmacist, dentist, and health care provider in the nation. It impacts everyone’s access to health care information. The penalties for disclosure violations by a health care provider range from $100 to a $250,000 fine and up to 10 years in prison.

     HIPAA mandates that providers apply reasonable and appropriate safeguards to insure the integrity and confidentiality of health care information and requires that health care providers limit health information to those who are intended to receive it. This means health care information cannot be released to any unauthorized person. This may mean you may not be able to receive medical records for your spouse or parent.

How does this affect you?

     Those you have named to act for you when you cannot speak for yourself, may not be able to do so under HIPAA. You want your health and medical information provided to the agents named in your estate planning documents so they can be fully informed and can make proper decisions for you. You should consider amending your living trust and re-executing your Durable Power of Attorney and your Living Will or Designation of Health Care Surrogate (also called Health Care Power of Attorney) to include the authority to access your medical information.

What happens without medical information release authorization?

     Here are two examples of cases that happened since these regulations went into effect:

1. George and Patty, husband and wife, were involved in a terrible automobile accident. George was seriously injured. Patty wanted to make certain that George received needed medical attention but could not get any medical information from his doctor. Even though Patty was George’s wife, George had not executed any document authorizing Patty to request his medical information, the new HIPAA law and regulations prevented her from obtaining medical information without such specific written authorization!
2. In another case, Jane, an elderly widow had a stroke and became incapacitated. Her two children Sarah and Tom felt it was in Jane’s best interest to place her in a nursing home so that she would receive adequate care. Even though Jane had named Sarah and Tom to act for her in her living will and health-care power of attorney, they were not given the authority to access Jane’s medical information. Sarah and Tom were required to go to court and be appointed as her legal guardians so that they could place Jane in the health care facility.

     Whether or not you already have estate planning documents, you need to ensure that your trustee or agents named in your trust, durable power of attorney or designation of health care surrogate have access to information essential to making appropriate decisions regarding your health. You should consult a knowledgeable attorney to review your existing estate plan documents, and if necessary, to amend them or prepare new documents to include the appropriate medical release language to comply with HIPAA.

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