The federal government often passes legislation that is designed to protect us. However, all too often, that legislation can have unintended consequences. Federal laws and regulations have now created privacy protections for medical information. The Health Insurance Portability and Accountability Act and regulations to implement it, known as “HIPAA,” came into effect. Now all “covered entities” must comply with strict rules or face fines and potential criminal penalties. “Covered entities” include your physicians and hospitals. Penalties for mistakes run from a $100 fine for an innocent error up to a $250,000 fine and 10 years in prison for malicious misconduct.
Health care providers are quite concerned about these potential penalties and are being very careful about the release of medical information in the face of such penalties. Even information releases that may be permitted under HIPAA are now being refused by some physicians or hospitals. For example, a patient at Boston’s Tufts-New England Medical Center had just received a heart transplant. Physicians at the hospital, including Dr. Deeb Salem, chief medical officer, became concerned that the heart might have had bacterial contamination. They contacted the providing institution and asked about a possible infection. The institution refused to provide the information, citing HIPAA. Of course, as Dr. Salem put it “It was ridiculous. The only live part of the donor was in our patient….It cost our patient the risk of being on multiple antibiotics for 12 to 15 hours, not to mention lots of money.” According to Todd Taylor, an emergency room physician in Phoenix, “It’s more than just health care providers being unable to get the information they need to care for patients – it’s patients not being able to get information, family members not being able to get information. It’s across the board.”
The goal of HIPAA — keeping your medical information private — is laudable. None of us wants our personal medical history to be available to nosy neighbors or gossipmongers. However, there are circumstances in which we may want some people to have access to our medical information. We want our loved ones to be able to find out how we are doing and be able to visit us in the hospital. Further, some release of medical information is necessary for basic estate planning implementation: Agents under powers of attorney and successor trustees typically do not have authority to act for you unless you are unable to make decisions for yourself. However, with many estate planning documents, it is the certification by a physician that determines you are unable to make decisions. The problem is that the physician will not certify incapacity unless you authorize the release, which you no longer have capacity to do. So, there is a Catch-22. The Agents and successor trustees cannot establish your incapacity and they cannot step in to take care of you and preserve your assets.
There is a solution: You can sign a HIPAA Authorization form that allows release of medical information to your agents and trustees, your family, and other people whom you designate. With such an authorization, your loved ones and those you have trusted to make decisions for you during incapacity can obtain necessary medical information about you.
A qualified estate planning attorney can help you make sure that you do not get hurt by the safeguards put in place to protect you. An attorney focusing in estate planning can integrate a HIPAA authorization with your other estate planning documents.
Morrison Law Group, PLC has devoted its practice to estate planning and elder law matters for more than 17 years and has been a Member of the American Academy of Estate Planning Attorneys since 2017. Morrison Law Group, PLC is one of only three firms in Louisiana to be admitted to Academy Membership. The firm has helped thousands of clients meet their estate planning goals and pass on lasting legacies to their loved ones. To learn more about how you can achieve your estate planning goals, please call (504) 831-2348 or visit our website at www.morrisonlawplc.com.