By: Barry E. Haimo, Esq.
December 29, 2015
If you have been to a hospital or doctor, you probably had to sign a piece of paper that notified you of HIPAA’s privacy practices. You may have signed this form without paying attention to the content, but the information in that notice makes sure that your protected health information remains confidential.
HIPAA stands for the Health Insurance Portability and Accountability Act that was passed in 1996 by Congress. It does 4 main things:
- Allows millions of Americans and their families to transfer and continue health insurance coverage when they change or lose their jobs;
- Decreases health care abuse and fraud;
- Requires industry-wide standards for health care information on electronic bills and other processes;
- Mandates the confidential handling and security of protected health information.
At its core, HIPAA was created to increase your medical privacy. Concerned individuals were worried that their medical records could be easily accessed and fall into the hands of someone who would exploit them and make them vulnerable to wrongdoing.
Medical record access is restricted to the patient only. A spouse or family member can’t access medical records without explicit written authorization.
If there’s a breach in the confidentiality of these records, the U.S. Department of Health and Human Services can enforce very expensive penalties on medical providers who violate HIPAA’s privacy rules. Because of this, it’s extremely important to plan for who will be able to access your medical records in the event of your incapacitation.
HIPAA and Estate Planning
If you are incapacitated and unable to make decisions for yourself, it’s essential that you have an estate plan in place where you designate the person who will make medical decisions for you. Here are 2 things you need to consider:
- Health Care Power of Attorney: A health care power of attorney enables your designated person to make medical decisions for you, but it doesn’t automatically allow that person to have access to your medical records and protected healthcare information. If you have or create a health care power of attorney, you should also sign a HIPAA authorization release. The release could be a separate document or it could be built into your health care power of attorney. Also, you can add a HIPAA authorization release to your durable power of attorney so that your designated person can manage your affairs after proof of your incapacity is obtained from your healthcare providers.
- Revocable Trust: If you have a revocable trust and you become incapacitated, the trust will most likely need proof of your incapacity in order for your trustee to take over your affairs. To plan for this, you could also include a HIPAA authorization release as part of your revocable trust, although frequently the plan in place appoints the same person as trustee as your health care surrogate.
You may choose to designate one specific person who will be able to access your medical records and subsequently make medical decisions for you. If you want other family members or individuals to also have access to those records in the event of your incapacitation, you will need to have a HIPAA release for each person.
A HIPAA release allows for anyone you name to communicate with your doctor and discuss your medical condition if you are hospitalized or in a long-term care facility. A HIPAA release also allows the people you designate to directly communicate with health insurance providers and companies to discuss medical bills.
By having a HIPAA authorization release as part of your estate plan, you can be assured that your medical decisions will be covered by someone of your choosing in case you are unable to make those decisions for yourself. If you need help with HIPAA and estate planning, contact a knowledgeable Florida estate planning attorney today.
Barry E. Haimo, Esq.
Strategic Planning With Purpose
YOU ARE NOT OUR CLIENT UNLESS WE EXECUTE A WRITTEN AGREEMENT TO THAT EFFECT. MOREOVER, THE INFORMATION CONTAINED HEREIN IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. EACH SITUATION IS HIGHLY FACT SPECIFIC AND EXCEPTIONS OFTEN EXIST TO GENERAL RULES. DO NOT RELY ON THIS INFORMATION, AS A CONSULTATION TO UNDERSTAND THE FACTS AND THE CLIENT’S NEEDS AND GOALS IS NECESSARY. ULTIMATELY WE MUST BE RETAINED TO PROVIDE LEGAL ADVICE AND REPRESENTATION. THIS INFORMATION IS PROVIDED AS A COURTESY AND, ACCORDINGLY, DOES NOT CONSTITUTE LEGAL ADVICE.