If you have a loved one who has become incapacitated in some way, and they need your assistance in handling their health care decisions, accessing medical records will become necessary at some point. In order to do so, you will need, at the very least, a power of attorney that authorizes you to make their health care decisions, as well as, provides access to their medical records.
Does a health care power of attorney allow access to medical records?
If you are the agent for a health care power of attorney, you have the right to access the medical records of the individual who executed the power of attorney, to the extent permitted by HIPAA. There may be certain exceptions, however.
How does HIPAA affect the authority of power of attorney for health care?
HIPAA, which stands for Health Insurance Portability and Accountability Act, provides for serious penalties if health care providers release any “Protected Health Information,” or unauthorized medical information typically contained in medical records, to anyone other than the person to whom the information belongs. HIPAA treats an adult or emancipated minor’s personal representative as the individual for purposes of the Rule. However, the scope of access to medical information depends on the authority granted by the power of attorney.
Can access to Protected Health Information be given to someone other than my health care agent?
Your estate plan should consider whether there is anyone else that you would like to give access to your Protected Health Information under HIPAA. Many times, family members who are not named as an agent under the health care power of attorney would like to be able to call the hospital to obtain information about your care. A properly drafted release form should be a part of your estate plan, under which anyone may be listed as an Authorized Recipient for health care disclosure under the Standards for Privacy of Individually Identifiable Health Care Information.
Do parents need a power of attorney to access their children’s medical records?
HIPAA, as a general rule, already allows a parent to have access to the medical records pertaining to his or her own children. Again, there are certain exceptions, which include the following:
– When the consent of the parent is not required under State or other applicable law;
– When the care has been authorized by a court or a person appointed by the court; and
– When the parent agrees that the minor and the health care provider may have a confidential relationship.
Even in these situations, a parent may still have access to the medical records of their children, when permitted by law. If you have questions, discuss your situation with your estate planning attorney.
Situations when access can nevertheless be denied
A physician or other health care provider can, in the exercise of professional judgment, refuse to honor the power of attorney if there is a reasonable belief that: (1) the person has been or may be subjected to domestic violence, abuse or neglect by the personal representative or agent; or (2) treating a person as the individual’s personal representative could endanger the individual, and doing so would not be in the best interests of the individual. These exceptions also apply to minors and the parent’s right to access medical records. Access can be denied if it is believed that the child has been or may be subjected to domestic violence, abuse or neglect, or that treating the parent as the child’s personal representative could endanger the child.
If you have questions regarding health care powers of attorney, or any other estate planning needs, please contact Anderson, Dorn & Rader, Ltd., either online or by calling us at (775) 823-9455.
Gerald M. Dorn, Estate Planning Attorney
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