Health Information Portability (Privacy) and Accountability Act (HIPAA)
By Karen L Kahn
Implementation of HIPAA’S Privacy Rules
The Health Insurance Portability (Privacy) and Accountability Act of 1996 (“HIPPA”) Rules took effect on April 14, 2003. HIPAA requires certain legal language as part of the Privacy Rules: Powers of Attorney; drafting Privacy Notices and HIPAA Compliant Authorizations and resolving issues of privacy involved in providing services to individuals. Like all new regulations there is a fair amount of interpretation that is required and there are many unaddressed issues in the HIPAA Privacy Regulations. Compliance with HIPPA’s Privacy Rules will require legal assistance. Below we have described a few of the problems that have surfaced in implementing the HIPAA Privacy Rules.
A. THE NEED FOR A MEDICAL POWER OF ATTORNEY WITH HIPAA CONSENT
Without a properly drafted Medical Power of Attorney/Medical Directive containing the required HIPAA consent statutory language, your family members and loved ones will not be able to communicate with doctors and/or hospitals on your behalf. They will not be able to receive information regarding you or make important decisions (sometimes life and death decisions) for you if and when you cannot act for yourself.
With and only with a properly drafted Medical Power of Attorney with HIPAA Consent your family members and loved ones will be able to communicate with doctors and hospitals on your behalf. THIS IS THE MOST IMPORTANT DOCUMENT IN YOUR ESTATE PLANNING DURING TIMES OF MEDICAL CRISIS.
B. BUSINESS ASSOCIATE AGREEMENTS/POWERS OF ATTORNEY
We have drafted and reviewed many Business Associates Agreements/Powers of Attorney. Although the Department of Health and Human Services (“DHHS”) posted a model Business Associates Agreement/Powers of Attorney, most of the Business Associate Agreement/Powers of Attorney we have seen are individually drafted by professional for individual clients. Since the responsibility for having a compliant Business Associate Agreement/Power of Attorney rests with the individuals, these Powers of Attorney must be reviewed carefully to ensure that they provide all the necessary representations to fulfill the covered entity’s legal responsibilities. Three particularly troublesome areas which should be reviewed carefully are: (i) any provisions relation to indemnification; (ii) representation regarding compliance with requirements for access, amendment and accounting of disclosures of protected health information (“PHI”), and (iii) the necessary reciprocity provisions where the covered entity also functions as a business associates of the entity from which they are requiring a Business Associate Agreement/Powers of Attorney.
C. HIPAA MEDICAL POWER OF ATTORNEYS/AUTHORIZATIONS
Human resource departments, doctor’s offices and lawyers have required assistance in developing HIPAA compliant authorization forms. The problem already surfacing is that even where an authorization meets the requirements set forth in the HIPAA Privacy Rules regulations, some healthcare providers will not disclose protected health information (PHI) without a proper Business Associate Agreement/Powers of Attorney specifically covering HIPAA disclosure language. These healthcare providers, trying to avoid making any error under HIPAA by disclosing PHI inappropriately, are simply refusing to provide medical records to anyone except the patient of Power of Attorney Agent without a proper Business Associate Agreement/Powers of Attorney specifically covering HIPAA disclosure language.
D. ACCOUNTING FOR MEDICAL DISCLOSURES
Healthcare providers and Power of Attorney Agents must “account for any disclosure” unless it is listed in one of the nine exceptions from the disclosure accounting rules. Few healthcare providers and even fewer Business Associates/Powers of Attorney are clear on when they must record a disclosure of PHI. Some have reacted by suggesting that they will record all disclosures. Recording every disclosure of PHI will prove impossible for nearly every healthcare provider or Power of Attorney. Yet, being clear on what disclosures must be accounted for will require training and a bit of clairvoyance as to what the DHHS has intended.
E. Strategy in Medical Power of Attorneys
Just as important as having a Medical Power of Attorney is the strategy in drafting property language and provision for the Medical Power of Attorney (and General Power of Attorney). One example of this includes making the Medical Power of Attorney effective immediately upon signing, not effective upon disability. If you make the Medical Power of Attorney effective upon disability only, then your Agent designated under your Medical Power of Attorney (and General Power of Attorney) will have to prove your disability first before being able to act on your behalf. This can cause delay and difficulty for your designated Agent under your Medical Power of Attorney (and General Power of Attorney) in times of crisis and need to act on your behalf. Obtaining a letter of incapacity/disability is not an easy process and creates an extra requirement of disclosure before your Agent can assist you under your Medical Power of Attorney when time is of the essence.
Please do not hesitate to contact us at (520) 797-1400 for a free consultation regarding these matters.
The strength of ALTA Estate Services, LLC is its many years of experience in this area of practice. Not only does ALTA Estate Services draft the most current and complete Medical Power of Attorneys, Livings Trusts, and Estate Planning documents, based upon the most current estate planning laws; ALTA also assists its clients and family members in the administration of Living Trusts and Medical Power of Attorneys during times of medical crisis.