HIPAA and how it affects you
Marc J. Soss
If you have visited a doctor within the last year, you undoubtedly are aware roof some new standards and additional forms that health-care providers have been asked to execute. This is the result of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which was amended April 14, 2003 to include standards to protect the privacy of patient medical records and health information. The new standards provide individuals with greater access to their medical records and control over how their personal health information is used and disclosed.
The regulations are designed to provide privacy protection for patients by limiting the ways that entities and individuals can use personal medical information. The regulations also protect medical records and individually identifiable health information (past, present, or future medical or mental-health condition), including diagnosis and treatment of diseases, mental illness, and drug or alcohol abuse.
HIPAA includes standards covering confidential communications and public responsibilities that ensure that an individual can request his/her doctor, health plan, and other covered entities take responsible steps to ensure confidentiality in their communications. They also ensure, in limited circumstances, that entities can disclose health information for specific public responsibilities (emergency circumstances; identification of the body of a deceased person, or the cause of death; or public health needs). The act requires covered entities (health plans and providers) to inform individuals of their right to inspect and obtain a copy of their records.
HIPAA has necessitated a revision to estate-planning documents (trusts, health-care surrogate forms [for both adults and minor children], powers of attorney, and living wills). Previously drafted documents did not include specific language authorizing a surrogate or trustee access to medical records or health information. Although the Act does not specifically restrict the ability of doctors, nurses, and other providers to share patient information, when necessary for treatment, it does restrict the release of information not related to health care.
It is recommended that all documents include specific language designating your surrogate as your “personal representative,” under the statute, and authorizing them access to any and all medical records and information pertaining to you. Proposed language may include the following: “I designate my surrogate as my personal representative under the Health Insurance Portability and Accountability Act of 1996, as amended, for all medical records, billing information, and health care-related decisions. This authority includes the authority to demand, obtain, review and release to others medical records or other documents including all records subject to, and protected by, the Health Insurance Portability and Accountability Act of 1996, as amended.”
The issue has arisen whether an attorney appointed by a court to represent an alleged incapacitated person, and members of a court-appointed examining committee are subject to the Act’s restrictions. To prevent any disclosure problems, it is recommended that you include language in the applicable court orders that appoint the attorney and examination committee members, granting them access to the alleged incapacitated person’s medical records and history. Access to this information may be beneficial to those representing and examining the individual.
ACCESS TO CHILD’S OR FAMILY MEMBER INFORMATION
HIPAA provides parents access to their minor child’s medical records. Exceptions to the rule are “(1) when the minor is the one who consents to care and the consent of the parent is not required under state or other applicable law; (2) when the minor obtains care at the direction of a court or a person appointed by the court; and (3) when, and to the extent that, the parent agrees that the minor and the health care provider may have a confidential relationship.” Even under these exceptional situations, how ever, a parent may have access to medical records of a minor when state or other applicable law requires or permits such parental access. If state or other applicable law is silent on a parent’s right, the licensed health-care provider may exercise his or her professional judgment, to the extent allowed by law, to grant or deny access to the medical information. In addition, a provider may not treat a parent as a personal representative when they believe, in his or her professional judgment, the child has been or may be subjected to domestic violence, abuse or neglect, or could be endangered.
Access to a family member’s medical information depends upon whether the inquiring individual is the caregiver and, in the physician’s professional judgment, the release of information is in the patient’s interest and relates to his/her care. The Privacy Rules allow a physician to share information with family or friends if the information is limited directly to their involvement in the individual’s care. However, a physician may not share information with family or friends if specifically asked not to or if the physician believes, in his/her professional judgment, a disclosure would be inappropriate.
VIOLATIONS OF THE ACT
Both civil and criminal penalties may be incurred by entities that misuse personal health information or violate HIPAA. For civil violations, a monetary penalty can be up to $100 per violation, or up to $25,000 per year, for each requirement or prohibition violated. For criminal penalties, “the penalty can range up to $50,000 and one year in prison for certain offenses; up to $100,000 and up to five years in prison if the offenses are committed under ‘false pretenses’; and up to $250,000 and up to 10 years in prison if the offenses are committed with the intent to sell, transfer or use protected health information.”
It is important to review your documents and ensure that they contain specific language granting your surrogates access to any necessary medical information. You may also specifically deny others access to your medical information to prevent unauthorized disclosure of information.
Lieutenant Soss is a tax, estate planning, guardianship, and corporate attorney in Sarasota, Fla. He can be reached at SMSOSS@aol.com.
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