Pollen And Your Eyes
At one time or another we will all be faced with elder parents, family members and/or friends who have reached a point where they need support in their daily lives and have arrangements made for them after death. The people who help are often their children or a sister or brother of a person who is elderly or has been disabled from birth or due to an illness or accident. The last thing we want to think about is HIPAA when dealing with this type of situation, but it is important to remember how HIPAA relates to death and disability because someone other than the patient is speaking and making decisions for medical care.
Under HIPAA How is Confidential Information Used After Death?
Under HIPAA after the death of a patient a hospital, doctor or health insurer does not need written permission from the patient's family to give confidential information to a coroner, medical examiner or funeral director. A patient does not need to agree prior to death in writing for this information to be released. Nor does a family member need to sign a permission form after the death of their loved one for this information to be released.
For example, a hospital may talk to the coroner or the medical examiner to identify the deceased and to determine the cause of death. These are the only reasons they may talk to, or send information to, a coroner or medical examiner. They may also talk to a funeral director about confidential information so the funeral director may carry out their duties for the deceased.
Coroners, medical examiners and funeral directors may tell others confidential information if they helped identify a person or asked another person to help them determine the cause of death. In a similar manner, a funeral director may tell an associate confidential information if they are assisting the funeral director in their duties for the deceased.
In some states hospitals and nursing homes will ask a patient or their family to designate a funeral home. Once the hospital/nursing home has this information, it will be included in the patient's medical records. Since hospitals and nursing homes must meet HIPAA rules, having this information in their records will keep them in compliance and offers the patient's family the additional benefit of having the deceased and their medical information transferred directly to the funeral home in full HIPAA compliance.
In some cases, a patient will have a personal representative. A personal representative is someone who is speaking for the patient or making medical and health care decision for patient at a time when he/she cannot make these decisions for themselves. Simply put — a patient can give another person permission to speak for them. This is often through a legal document that the patient has signed. This permission can also be given to a family member or a friend by a court.
If a person has permission from a court or a legal document to act for the deceased person a hospital, doctor or health insurer must talk to the personal representative. If you are acting as a personal representative you have a legal right to the patient's confidential information. This means that the doctor must talk to you about your family member or friend and provide you with any reasonable information you need to do your work for the court or to pay medical bills and other similar work.
HIPAA Personal Representatives
Many people do not understand who a personal representative is and what their duties consist of. A personal representative covers a large number of categories beyond the recently deceased and includes adults and children considered adults, called emancipated minors, and children not yet considered adults, called un-emancipated minors.
It is important to remember that some children are considered adults under some state's laws. Often when a child is in the military or married they are considered adults, even though they may not be able to vote and purchase alcohol products yet. The HIPAA rules recognize that state laws, such as how a minor can be considered an adult, also play an important part in how confidential information is shared by stating in the regulation "under applicable law."
For adults and emancipated children that are patients their personal representative must be treated as if they were the patient, e.g. given all the patient's confidential information to make medical and health care decisions for the patient because they are unable to make decisions for themselves. The personal representative may use the confidential information to make the necessary medical and health care decisions for the adult or the adult child they are helping.
For children who are not considered adults personal representation is very different. Who can speak for a child is controlled by state law. In most cases a parent speaks for a child in health care matters, but there are exceptions.
When dealing with a child's medical care under the HIPAA privacy rule there are three situations when the parents cannot speak for the child. HIPAA is clear that there is no personal representative when:
- The child agrees to the medical care or service;
- A court or someone other than the parent is permitted to speak for the child; and
- A parent has agreed to confidentiality between the child and the doctor or hospital.
Un-emancipated Minors
For an un-emancipated minor the rules also fall under state law. You need to check the state law. The following grid shows who can make decisions under HIPAA for an un-emancipated minor, as well as the actions they may take and the individuals they may share health information with.
| Law/Authority | Person[s] | Actions | When talking to | Unless [under HIPAA] |
|---|---|---|---|---|
| Under state law |
|
May make medical and health care decisions |
|
|