June 4, 2004

Medical Privacy bars Mother from medical records of 18 year old son

Last week, I visited with Deborah Pechet Quinan, one of my favorite lawyers. An estate planner, Deborah believes in making it as easy as possible for her clients to understand complex documents by giving them easy to understand flow charts and fiduciary listings. I’ve great respect for many lawyers - I should being one myself – but I’ve never liked the priestly nature of the profession and the “I know more than you do” attitude of too many lawyers. Of course, lawyers know more about the law, but that doesn’t mean that they can’t make their documents easier for their clients to understand and access essential information.

After telling me a story about a mother who couldn’t see the medical records of her gravely injured 18 year old son because of “medical privacy”, Deborah now recommends a HIPAA Authorization as one of the standard documents for her clients.

Turns out that the federal privacy rules have put a shield around health-related information that can prevent advisors and family members from getting necessary facts, they used to be able to get quite easily. Overview Privacy

Since violators of medical privacy can be punished with civil and criminal penalities and even jail if the offenses are committed under false pretenses or with the intent to use the information for commercial or personal gain, doctors and “covered entities” have become quite wary about disclosing health information without clear authorization

“Bound and Determined” by Deborah Jacobs in the June issue of Bloomberg Wealth Manager lays out areas where the HIPAA shield can pose problems to existing estate planning documents. Without a HIPAA authorization, it may be difficult to establish incapacity. While durable powers of attorney are not affected, ‘springing’ powers of attorney may be. So may be successor trustees for revocable living trusts.

While the person to whom you have given a health care proxy or health care power of attorney becomes a “personal representative” under HIPAA and entitled to the same rights to medical information as you, the patient, there are others whom you may want to have some access to your medical records even for a limited purpose such as proving incapacity. Charles Sabatino, a lawyer with the American Bar Association Commission on Law and Aging in Washington, DC. is quoted as recommending that clients sign a HIPAA release that authorizes disclosure of specific health information to identified parties who may include family members, friends, lawyers, accountants and financial advisors.

A sample release form is available at the website of the National Academy of Elder Law Attorneys
So along with your toothbrush, when you go to the hospital remember to bring your signed release and your health care proxy.

Posted by Jill Fallon at June 4, 2004 3:01 PM | Permalink