Last Updated: 6/27/2008
With the strict new health care privacy rules now in force, it’s more important than ever that everyone consider creating an advance medical directive that specifically names those persons who are entitled to access to health care information about them.
Under the Health Insurance Portability and Accountability Act (HIPAA), which recently became effective, doctors, hospitals and other health care providers may no longer freely discuss a patient’s status or health with spouses or other family members unless the providers have in hand signed consent forms from the patient.
An advance medical directive, health care power of attorney, or other health care proxy that specifically names an agent to manage or consent to a patient’s care will usually be adequate, if the patient has signed it. Otherwise, even spouses in long-term marriages, children and other close relatives may find it very difficult to obtain information on their loved one’s medical condition.
The exceptions to this restricted access are very limited, but may include an “emergency” situation, or when the patient is “incapacitated.” But even this is subject to the professional judgment of the physician, who may still decide not to breach privacy. Further, even a general access to health care information may not be adequate for psychotherapy notes. Authorization to share this information must be given in a separate document, or at least must be separately stated in the general medical consent authorization.
For those who do not have a signed consent and who cannot prevail upon the provider to breach “protocol,” the only option may be to apply to the court for creation of a formal conservatorship or guardianship. The message is clear: everyone should now consider creating an advance medical directive specifically naming those persons who are entitled to access to health care information. Alternatively, at least prepare a written consent form authorizing such access. Remember: a general power of attorney for financial matters will not suffice. The instrument must specifically be for health care matters. If the authorization is to include psychotherapy notes and treatment, it is best to create a separate document to that effect.
To create such documents, contact a qualified elder law attorney in your state.
For a booklet that addresses consumers” questions and answers about the new privacy regulations, click here. (The booklet is in PDF. If you do not have the free PDF reader installed on your computer, download it here.)
For more information on medical directives, click here.
Author Gene L. Osofsky is an elder law attorney with offices in Hayward and Pleasanton, California. To go to his firm’s ElderLawAnswers home page, click here.