The Impact of HIPAA

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Imagine that your spouse wakes up in the middle of the night with severe chest pain. You call 911 and follow the ambulance to the hospital. When you ask the doctor about your spouse’s condition, he asks you if you have documentation which names you as your spouse’s HIPAA “personal representative.” HIPAA you say, what’s HIPAA?

HIPAA is the Health Insurance Portability and Accountability Act.

Under HIPAA, health care providers can only release your medical information to you or your “personal representative”, which HIPAA defines as someone authorized to make medical decisions for you under state law. This should include someone appointed to act for you under a medical power of attorney.

However, under Michigan law, before someone is authorized to act on your behalf pursuant to a medical power of attorney two physicians must certify in writing that you are disabled. But if the person seeking to act has not been designated by you as your HIPAA “personal representative” ahead of time, the doctors won’t provide such letters. HIPAA creates a vicious circle for those trying to use a medical power of attorney in Michigan. Unless a HIPAA “personal representative” designation is part of your estate plan, your medical power of attorney is rendered moot.

Complicating matters further is the fact that health care providers are understandably erring on the side of caution rather than risk the civil and criminal penalties imposed for violating HIPAA. This narrow interpretation of HIPAA creates situations where parents are unable to determine their adult child’s condition and persons responsible for the care of an elderly parent are kept out of the information loop. Even if you have powers of attorney, if they don’t reference HIPAA then providers won’t release medical information.

One tragic example of the impact of HIPAA occurred this year in Craig, Colorado. Thinking it was necessary to comply with HIPAA, the 911 dispatcher in that small rural community stopped mentioning residents’ names in radio calls to EMS crews, making it more difficult for them to find addresses. On June 9, residents watched helplessly as emergency crews stopped to ask for directions while 54 year old Francis Moore lay dying from a heart attack in his backyard. “One of my neighbors told me they went to her house and asked where the address was. She said, ‘If you tell me the name, I can tell you where it is.’ And they said they couldn’t.” resident, Joanne Lighthizer said. Tragically, Francis Moore died.1

Because of this federal law change we recommend that your estate plan be updated, especially your powers of attorney. The updated documents should appoint a HIPAA “personal representative” and make it unnecessary to establish a disablity before your records can be released. These recent changes make it wise to get your estate plan updated.

1USA Today,10/16/2003, “Medical-Privacy Law Creates Wide Confusion”, author Laura Parker.

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