Including HIPAA Authorizations in Incapacity Planning

Most of us are somewhat familiar with HIPAA, as nearly all health care providers require their patients to sign a HIPAA acknowledgement form stating they are aware of the HIPAA privacy regulations.  Although you sign the form, do really know the purpose of those privacy regulations and what they mean in terms of your estate plan?  Your estate planning attorney can explain in detail why including HIPAA authorizations in incapacity planning is important.

What exactly is HIPAA?

The acronym HIPAA stands for Health Insurance Portability and Accountability Act.  This piece of legislation was passed in 1996. Under the law and its regulations, which were passed in 2003, health care providers risk being assessed very serious penalties and sanctions for releasing any “Protected Health Information,” or unauthorized medical information typically contained in medical records.  For this reason, the majority of health care providers are very cautious when releasing medical records to anyone other than their patient.  Because the definitions included in the law are very broad, health care providers are unwilling to release any information to anyone, other than the patient, without a signed HIPAA release form.

How is “protected health information” defined?

“Protected health information” includes all information created or received by a “covered entity” that relates to an individual’s mental or physical health, or that could be used to identify that individual. The term “health information” is defined as follows:

Health information means any information, whether oral or recorded in any form or medium, that:

(A) is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and

(B) relates to the past, present, or future physical or mental health or condition of any individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual.

This definition includes not only health care providers, but also pharmacies, insurance companies and nursing homes. In light of the fact that health care providers will not release medical information without a properly executed HIPAA authorization, every estate plan needs to include a HIPAA authorization. Otherwise, your spouse or adult child may not be able to receive any information regarding your condition, if you become incapacitated.

Why including a HIPAA authorization in your estate plan is important

A HIPAA authorization allows the individuals you select and identify in the release to receive information regarding your condition and treatment from your health care providers. This is crucial for the person you name as your agent in a Health Care Power of Attorney to have. The HIPAA authorization can also apply to the agent under your Durable Power of Attorney or the trustee of your revocable trust.

When it comes to determining your incapacity, it is also important for your attorney to have access to your medical records, in order to properly represent you and your interests. In reality, many of the individuals you designate in various estate planning documents are likely to need access to your medical records in order to fulfill their fiduciary duties.  Without a HIPAA authorization, they will be completely without the resources they need to fulfill their duties.

If you have questions regarding HIPAA authorizations, or any other incapacity planning needs, please contact Wilcox Attorneys, PA online or by calling us at (470) 443-0062.