Helping the Helper

An unexpected trip to to the emergency room.

A very dear and longtime friend goes in to the hospital unexpectedly. I go to the hospital as soon as I find out and the nurse asks me if I know what medicines my friend is taking. I have no idea. My friend, although alert, is not remembering well and cannot list his medicines. I then ask what is wrong. He is not sure and the doctor has already left for the day. I call his closest relative, a sister who lives two hundred miles away, to let her know he is in the hospital. She asks me what the doctor says is wrong. I do not know and no one will tell me.

My friend would have wanted me to be able to tell the doctor what medicines he was taking and to have the doctor tell me about his condition so I could tell his sister.

Protecting the privacy of health information

There is a good reason the doctor, pharmacy and nurse would not tell me the information if I had asked. Federal law, more specifically, the Health Insurance Portability and Accountability Act of 1996 (or HIPAA) protects individuals’ medical privacy. It prohibits hospitals, doctors, pharmacies, and other healthcare providers from releasing protected health information to others unless the patient has waived the law’s protection. There are heavy penalties for violating this law.

There are exceptions in HIPPA. If my friend was unconscious and I was designated his agent under a medical power of attorney, I would have access to all medical records necessary to make any medical decisions that were required under the circumstances. However, there can be circumstances short of unconsciousness or other incapacity where a patient wants and needs to have a family member or close friend to have access to medical records to assist him or her.

What to do when you need someone to help

As a result, many estate planning attorneys prepare a HIPAA form for their clients that waives the protection so as to allow a designated person to receive the client’s protected health information when appropriate. The problem is many hospitals and other health care providers will not honor that form and will only recognize their own preprinted HIPPA waiver form.

The solution is to use a HIPAA waiver form that is widely recognized and, most importantly, widely accepted by health care providers. Unfortunately, HIPAA does not provide for such a form. Our Texas Office of the Attorney General (“OAG”) may have the solution. In 2011, the Texas Legislature directed the OAG to draft a standard form in compliance with the HIPAA law that Texas citizens could use to waive the law’s protection and allow access to a designated person or entity.
There are efforts currently underway to promote wide acceptance of the OAG form. In the meantime, the best practice is to ask the hospital you are likely to go to in an emergency as well as the pharmacy you use and physician you see for their HIPAA waiver forms. Complete those forms as well as the OAG form naming the person you want to assist you. In the OAG form, in the appropriate box where you would list the names of the designated individuals or entities, type in: All health care providers and entities that have provided me health care at any time.

These forms, of course, should be part of a set of appropriate estate planning documents right along with a medical power of attorney, end of life advance directive (living will), and financial power of attorney.

To access the OAG form, click here.

To read more about HIPAA and protecting health care privacy:
Texas Law
Federal Law

When a HIPAA waiver is not needed to access another’s medical information.

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