Most clients have heard of HIPAA, especially since most doctors and hospitals now require their patients to sign forms acknowledging they are aware of the regulations. But how many of us know the purpose of HIPAA and what the regulations actually require? Better yet, do you understand the role of HIPAA authorizations in incapacity planning? Your estate planning attorney can provide more detail, but here is an overview of the relationship between HIPAA and your incapacity plan.
What is HIPAA?
HIPAA stands for Health Insurance Portability and Accountability Act, and it was passed in 1996. It was not until 2003 that the United States Department of Health and Human Services enacted regulations that apply to HIPAA. Under the law and its regulations, health care providers can face very serious penalties and sanctions for releasing any “Protected Health Information,” or unauthorized medical information typically contained in medical records.
As a result, most health care providers are very hesitant to release medical records to anyone other than their patient. Because of the broad definitions, health care providers typically will not release any information to anyone, other than the patient, unless they have a signed HIPAA release form.
What information does HIPAA protect?
“Protected health information” includes any and everything that is created or received by a “covered entity” that relates to an individual’s mental or physical health condition, or that could be used to identify that individual. The term “health information” is defined as follows:
Health information means any information, whether oral or recorded in any form or medium, that–
(A) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and
(B) relates to the past, present, or future physical or mental health or condition of any individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.
These covered entities include not only health care providers, but also pharmacies, insurance companies and nursing homes. Since health care providers will not release medical information without the proper authority, every comprehensive estate plan must include a HIPAA authorization. Without one, your spouse or adult child will not be able to receive any information regarding your condition, if you become incapacitated.
The importance of including a HIPAA authorization
A HIPAA authorization will allow the individuals you name in the release to receive information from your health care providers. This is important for the person you name as your agent in a Health Care Power of Attorney. The HIPAA authorization can also apply to the agent under your Durable Power of Attorney or the trustee of your revocable trust. Also, when it comes to determining your incapacity, it would be helpful to your attorney to have access to your medical records, as well. Indeed, many of the people you may designate in your various estate planning documents may need access to your medical records in order to fulfill their fiduciary duties.
If you have questions regarding HIPAA Authorizations, or any other incapacity planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.
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