[ Monday, July 12, 2004 ]


HIPAA and powers of attorney: Prior to the passage of HIPAA, most states had some sort of medical power of attorney law that allowed individuals to designate some person to become their medical decision-maker if the individual became incapacitated or otherwise too ill to make decisions on his own behalf. For example, a husband and wife could each designate the other to be their "attorney" for healthcare decisions and, if the husband became too ill to make decisions on his own or became incapacitated, the wife would start making the decisions. Or an elderly widow could designate her son to be her decisionmaker if she became unable to make her own medical decisions. These powers of attorney are triggered by a physician's determination that the individual is incapacitated.

In pre-HIPAA times, the physician determining incapacity would notify the designated individual, who would, if necessary, start a court proceeding to officially appoint the designated individual as guardian or agent for healthcare decisions. However, under HIPAA, there is a restriction on the physician disclosing the information to the designated individual unless the physician can determine that the designated individual is "involved" in the care of the individual. Particularly given the potential damages for a HIPAA violation, many physicians are unwilling to make that determination. This leads to a vicious circle: the widow is incapacitated; the son was designated as agent, but the appointment only occurs as soon as the physician discloses to the son or the court that the widow is incapacitated; the doctor can't or won't make the disclosure without authorization from the patient or her agent; the patient is incapacitated and can't authorize the disclosure, and the son can't be appointed until the disclosure is made.

In other words, at this article from the Washington Post (free registration requried) illustrates, the agent can receive the information and authorize the disclosure of it, but the person doesn't become the agent until the information is disclosed.

Estate planners are starting to notice this problem. If you have designated someone to be your agent upon incapacity, and that person isn't regularly involved in your care, you may want to add a HIPAA authorization to the list of estate planning documents in your files. Also, keep in mind that HIPAA authorizations have some specific particulars (you can't just call it a HIPAA authorization and expect it to fly), and generally can't be combine with any other sort of authorization. So, add a belt to your suspenders and add a new HIPAA authorization to your estate planning documents.

Jeff [8:58 AM]

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