Imagine a situation where your spouse suddenly becomes extremely ill, is rushed to the hospital, and becomes incapacitated. The spouse is admitted and being treated by numerous doctors, only some of whom you have had the ability to talk with directly. Eventually, you are told that your loved one has a serious condition that warrants surgery.
You become overwhelmed, confused, and uncertain about how to proceed, but conclude that the place to start is to request a copy of the medical records so you can make an informed decision. You desire to determine what diagnosis may have been made, what findings each of the doctors has reached, and what medications, and their dosages, are being administered.
Seems like a reasonable request; however, you will be informed that these records are “protected health information” under HIPAA and access will be denied without a written authorization from your spouse, who is in no condition to be able to provide such authority. Your stress is compounded because the doctor will discuss your spouse’s condition and want your authorization for the procedure but you can’t get the records that may assist you in making the best choice.
This is a very real scenario with potentially drastic consequences. So, how’s this possible?
The Health Insurance Portability and Accountability Act (“HIPAA”) is a federal law passed in 1996. Among other things, HIPAA required the Department of Health and Human Services to create a federal “Privacy Rule” for health providers and health plans, governing how these entities must protect the privacy of an individual’s medical information.
The HIPAA Privacy Rule requires “covered entities” to take certain steps to keep a person’s health information confidential and secure. A major goal of the Privacy Rule is to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high-quality health care and to protect the public’s health and well-being. State laws also require the protection of your health records.
When Disclosure is Permitted?
HIPAA provides that health care records must be disclosed when an individual authorizes the release of the information. In addition, NRS 620.061 also limited a custodian of health care records to make the records of a patient available for physical inspection by the patient or a representative with written authorization from the patient. The problem is that if your spouse is not conscious or is unable to sign his or her name to provide the authorization, you will be denied access.
Becoming a “Personal Representative”
The Department of Health and Human Services recognizes that there may be times when individuals are legally or otherwise incapable of exercising their rights or simply choose to designate another to act on their behalf with respect to these rights. Under the Privacy Rule, a person authorized under state law, to act on behalf of the individual in making healthcare-related decisions is the individual’s “personal representative.”
The personal representative stands in the shoes of the individual and has the ability to act for him or her and exercise the individual’s rights. HIPAA specifically recognizes a court-appointed guardian as a personal representative who is entitled to access the protected health care information.
In Nevada, the guardianship process starts with the filing of a petition requesting the guardian be appointed. Most importantly, a physician will also need to provide an evaluation indicating that the person is incapacitated and guardianship is appropriate. The problem is that guardianship is a time-consuming and expensive process.
Once you eventually obtain guardianship, you will be able to secure the health care records you desire. However, you should be aware that there may still be extensive court supervision requiring the establishment of a blocked account, preparing an inventory, filing annual reports and/or accountings, and obtaining court permission for certain actions.
The Best Solution
A Durable Power of Attorney for Health Care Decisions (a “DPOA”) enables you (the “principal”) to provide instructions to a third party (the “agent”) regarding crucial decisions when you are incapacitated and no longer able to manage your health care decisions without assistance. Properly executed DPOAs will authorize your agent to provide assistance without having to resort to filing for guardianship proceedings in the applicable court.
The delays, as well as the costs, encountered by loved ones having to seek guardianship, can be significant. A health care power of attorney will generally facilitate access to the patient’s medical and mental health records under HIPAA because the named person would be recognized as the patient’s personal representative.
However, in order to make certain you avoid the access problem discussed herein, the DPOA should contain the following language: “I agree to, authorize and allow full release of information by any government agency, medical provider, business, creditor or third party who may have information pertaining to my health care, to my agent named herein, pursuant to the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191, as amended, and applicable regulations.”
The DPOA should be an essential part of everyone’s estate plan. For more information about these documents, don’t hesitate to download our Estate Planning e-book from our website at www.drizinlaw.com.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. A review of this information does not create an attorney-client relationship.