HIPAA Law Impacts You and Every Member of Your Family
The privacy provisions of the Health insurance portability and Accountability act, commonly know as “HIPAA” have caused turmoil throughout the medical industry, as doctors, hospitals, nursing home facilities and other “Covered Entities” are now subject to sanctions and monetary fines for the unauthorized disclosure of “Private Health Information.” Fearing the heavy hand of the government, health care providers have clamped down on the release of medical records and other health care information to anyone other than the patient.
Certainly those who wrote the federal law had the best intentions, however the restrictions on the access to medical records have made it more burdensome, and often impossible, for those you love and trust to get any medical information. This is particularly true for the people you name in your estate plan. The agents named in your advance health care directive and trustees of your revocable living trust may now find it very difficult to carry out their duties if you become hospitalized and/or incapacitated.
To illustrate the alarming consequences of this new law, imagine that you have a child or grandchild attending college out of town. One day you get a call from the hospital in that college town. The caller inquires whether your child has a HIPAA medical release form. Worried that the call from the hospital is about an accident your child might have been involved in, or is otherwise seriously ill, you reply that you don’t know what a HIPAA medical release form is and anxiously ask if anything is wrong with your child. Rather than giving you any information, the caller from the hospital apologizes for the call and abruptly hangs up. When you call back to follow up, nobody will tell you anything. How would you feel? Change this example anyway you want.
The bottom line is if you need medical information about any member of your family or a loved one, and the HIPAA medical release form is not available, you’ll quickly realize how devastating these rules can be. Even telling a visitor in a hospital the room number of a patient is considered by many to be a violation of patient privacy protected under these rules.
There is good news. The solution to this problem is the execution of a special document called an “Authorization for Disclosure of Protected Health Information” applicable to every member of your family and others who you want informed about your medical condition. This document along with a properly drafted durable current financial power of attorney and a current advanced health care directive are the absolute minimum in estate planning documents needed in Hawaii if you should become incapacitated.
Here is a true story about why it is so important that you execute a HIPAA medical release form as soon as possible. Because the onset of senile dementia made it difficult for an elderly woman to manage her financial affairs, family members sought to have the successor trustee appointed under her living trust take over the management of her trust assets. However, because there was no HIPAA release form authorizing the release of her protected health information, the family wasn’t able to get the elderly woman’s doctors to certify her mental disability. Without the HIPAA medical release the doctors were afraid their actions would violate the privacy rules so they declined to help. The family members were forced to petition the probate court to appoint the successor trustee, incurring large expenses and delaying the orderly transfer of duties. All of this could have been easily avoided had a HIPAA medical release form been available to give to the doctors.
Do arrange with an estate-planning attorney to have this important document
prepared for you and those that you love.
Legal Disclaimer
This information has been provided for informational purposes only. It does
not constitute legal advice. The receipt of this information does not establish
an attorney-client privilege. Proper legal advice can only be given upon consideration
of all the relevant facts and laws. Therefore you should not act upon any
of the information contained herein without seeking appropriate legal counsel.
Attorneys Judith Sterling and Michelle Tucker are both CPAs and licensed attorneys. They are the first two attorneys in Hawaii to be certified by the American Bar Association (ABA) accredited Estate Law Specialist Board, Inc., as Estate Planning Law Specialists, and are so certified by the Supreme Court of Hawaii. The Supreme Court of Hawaii grants Hawaii certification only to lawyers in good standing who have successfully completed a specialty program accredited by the ABA.
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