To HIPAA Release or Not to Release
February 2nd, 2010 by MargolisIn 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPAA) in part to protect the privacy of patient records. As with most laws, the results have been both good and bad. Medical providers have become more careful about preserving patient confidentiality, but sometimes to the detriment of open communication with family members who may be able to provide important information to doctors and other health care providers.
In response, many estate planners have begun including HIPAA releases in their documents for clients so that medical personnel will communicate and share information with designated individuals. These might be included in health care proxies or powers of attorney, or be separate documents.
Some, however, have argued that such releases are unnecessary since health care proxies and powers of attorney already provide the appointed agent access to medical records and personnnel. This is true as is explained on the Health and Human Services website as follows:
Generally, a covered health care provider or health plan must allow your personal representative to inspect and receive a copy of protected health information about you that the covered health care provider or health plan maintains….
If a person can make health care decisions for you using a health care power of attorney, the person is your personal representative.
Some have argued that to include a HIPAA release in a health care proxy or power of attorney serves to reduce the authority of the appointed agent, making it appear that they only have authority to receive information and undermining the state grant of power to make health care decisions for the incapacitated patient.
In our practice, we haven’t seen this result. We have more often seen health care providers refusing to communicate openly with family members, in some instances even refusing to receive information they may provide, which was never the purpose of the HIPAA legislation. The HIPAA release prevents doctors and others from avoiding family members.
In fact, while we include it in our health care proxies, we also have clients sign a separate release naming the health care agent as well as anyone else the client may wish to be able to communicate with medical providers. While only the appointed health care agent may make health care decisions, anyone under the HIPAA release may then communicate with doctors, nurses and therapists as appropriate.