Advanced Healthcare Directives HIPAA Issues
Unfortunately most states created their statutes and corresponding template language before HIPAA was enacted so sites that collected all these templates and provide them free of charge are typically missing the needed HIPAA authorization (e.g., http://www.compassionandchoices.org, http://www.caringinfo.org/stateaddownload).
In performing a quick review of advanced healthcare directives I found two different strategies that lawyers used to add HIPAA authorizations. The University of Hawaii’s Elder Law Program simply added the HIPAA authorization to the agent’s authority.
To request, receive, examine, copy, and consent to the disclosure of medical or any other health care information, including medical files and records. This includes my delegated authority for my agent to act as my personal representative for release of all individually identifiable health information concerning me by both covered and non-covered entities under the provisions of the Health Insurance Portability and Accountability Act (HIPAA) and/or other Federal and State laws pertaining to healthcare and healthcare information.
The main difficulty with this approach is that the HIPAA authorization does not kick in until the agent’s authority becomes effective. And that is typically only after a physician has determined that you can no longer make decisions for yourself. This can be especially problematic in the case of dementia where the doctor may need to converse with the agent to make a competency determination.
The second approach I’ve seen is to simply tack on a HIPAA authorization at the end of the healthcare power of attorney section of the advanced healthcare directive. The following is example language.
My agent is authorized to review my medical records, reports and charts and to consult with and secure information from treating physicians, dentists, health plan providers, hospitals, clinics, laboratories, pharmacies, or any other health care provider, insurance company or medical information bureau, and to sign consents and acknowledgments on my behalf pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) as amended.
Since this authorization is outside of the AGENT’s AUTHORITY definition it takes effect immediately. Because it makes everyone’s job easier I have a preference for this solution.
I’ve also seen a hybrid solution which attempts to give the doctor limited authority to discuss medical information with the agent in determining whether to invoke the healthcare power of attorney, but that is MUCH less common and would likely add to the potential confusion so I wouldn’t recommend it.