Does your Estate Plan include a HIPAA Release?

An important part of estate planning is to have advance health care directives in place. An advance directive is a legal document stating your directions and wishes. A Durable Power of Attorney (DPOA) is one such document. DPOAs however, usually address financial and contractual matters. Advance Health Care Directives, on the other hand, address your medical wishes should you loose the ability to make your own decisions. There are two kinds of Advance Health Care Directives:

Types of advance directives are:

However, as useful as these documents are, they are incomplete without a signed and witnessed HIPAA Release form. Without this document, your health care providers may not legally be able to disclose critical medical information to the person you have chosen to make health care decisions for you, should you become incapacitated. This means, among other things, your designated health care surrogate may not be able to get a second opinion regarding your medical condition and options, nor may he or she be able to obtain copies of your medical records.

For example, if your spouse who has named you as his Health Care Surrogate, is in a serious accident and is hospitalized and placed on strong pain medication that alters his decision making ability or judgement, you may be asked to consent to the treatment the attending physician recommends. However, if you want to obtain a second opinion before consenting to the recommended treatment, you may need a copy of his medical records, from the time he entered the hospital, so as to take them to another physician, for a second opinion. If you do not have a properly executed HIPAA Release form that gives you authority to obtain his medical records, the hospital will most likely refuse to give you copies, or even the opportunity to look at his file. In other words, you may have the authority to consent to treatment for him, but not to secure information you would need to obtain a second opinion.

Another context where this comes up is with students who are in college. Once a child turns eighteen (18), his or her parents are no longer the legal guardians and are not entitled to view or obtain his or her medical information without a properly drafted and executed HIPAA Release form. It is important to have certain documents, including a HIPAA Release form, completed soon after your child turns eighteen (18), and certainly before he or she leaves for college. Many a parents have been unpleasantly surprised to learn, upon calling the health clinic at their child’s university, that they are not entitled to any information regarding his or her health, even if he or she is in a medical emergency.

What Is HIPAA?

HIPAA is an Act of Congress that was signed into law by President Clinton in 1996. It stands for Health Insurance Portability and Accountability Act.

The accountability part of this Act means that your doctors, pharmacists, nursing homes, insurance companies, and other health care professionals are bound by law to protect and secure your health and medical information. They must refrain from the unauthorized disclosure of what is called your “personal health information.”

The accountability part of this Act means that your doctors, pharmacists, nursing homes, insurance companies, and other health care professionals are bound by law to totally protect and secure your health and medical information. They must refrain from the unauthorized disclosure of what is called your “personal health information.”

This information includes:

  • Any information that can be used to identify you (name, address, social security number, telephone number, patient account number)
  • Any information about your physical or mental medical condition and treatment, including blood work, x-rays, doctor’s notes, etc.
  • Billing and payment records

HIPAA limits everyone’s access to your medical records, this can even include your spouse, your parents and your children. Contrary to popular belief, just because you are someone’s spouse, parent, or child, does not mean you have access to their medical information, even if you are the designated health care surrogate according to a legally binding designation. Without question, your estate planning documents need to include a HIPAA Release.

As part of your comprehensive estate plan, we will incorporate all necessary HIPAA authorization and release documentation, to ensure that your designated family members or health care agents will be able to access your medical records. If you already have health care documents or advance directives prepared, are you sure you have a HIPAA Release? Estate plans prepared several years ago may not contain the HIPAA language. Even if they do, it may not contain adequate language. For example, best practice is to include the principal’s initials next to itemized categories of highly sensitive information he or she does wish to be disclosed to his or her agent (for example, mental health, sexually transmitted diseases, or drug use medical information)

We would be happy to review your documents in order to make certain the proper authorization and releases are in good order. Contact Us today or give us a call at (305) 901-6277.