Protected health information can’t be disclosed to anyone but the patient or the patient’s authorized recipients. If you are the court-appointed Guardian of an incapacitated person, or you are a designated Agent under a Health Care Proxy or Health Care Power of Attorney, you may have encountered roadblocks in trying to get access to the records of the person you are acting for. These protections of confidentiality were always a matter of common law but were explicitly set down in the Health Insurance Protection and Portability Act of 1996, usually called “the HIPPA Law.” The law allows the patient to sign a HIPPA-compliant records release. The law also explicitly states that a Guardian is an authorized recipient, and that the designated Health Care Proxy/ Agent/ Representative is an authorized recipient. Nonetheless, even if you are authorized, you may hit roadblocks getting access to the medical records of the incapacitated person.
I encountered this recently and I have to say it was just maddening. I have been the Legal Guardian [of Person and Property] for a certain individual for about 15 years. Two months ago he had a serious injury and was admitted to the hospital. The patient has been in that hospital before and I thought that my guardianship record had been placed on the chart. Arriving at the hospital on the weekend without my guardianship certificate, I discovered that they could not check the prior charts, and of course would give me no information. At 7:30 Monday morning, I faxed up the guardianship certificate with a request that the nurse or doctor call me. By mid-day I had heard nothing and when I called in I was told that those faxes go to a central fax room and don’t get delivered right away [though I had faxed it to the direct line at the nurses’ station]. This whole process had to be repeated and finally a day later I was able to have a telephone meeting with the treatment team. Then he was back in the hospital, and on arrival at the hospital a few mornings later the floor nurse wouldn’t allow me to review the patient’s chart, citing HIPPA, and I had to again provide the certificate because they still hadn’t actually entered this critical information into the patient’s chart. Even with that it took several conversations until the nurse was persuaded that I had authority to not only see the chart but to make the decisions and sign the Consents to Treatment. When the patient was discharged to an outside subacute facility, the hospital didn’t provide this guardianship information with the transfer paperwork and I had to start it all over again. When he went back to the hospital, a new chart was being created and again, they found no record of my guardian status. Start again.
The usual Health Care Power of Attorney appoints a decision-maker to make the medical decisions if the doctors determine that the patient is incapable of giving informed consent. A good document will also say that its effectiveness is not diminished by the mere passage of time, and it will also grant HIPPA access to information. However, if the patient isn’t incapacitated, the patient may still have to sign a new HIPPA authorization in order for the treatment team to be willing to share information with you. That wouldn’t install the person as surrogate decision-maker at that point, but it would give them access to necessary information in order to be able to assist the patient to make decisions about treatment. Here is a downloadable PDF of a HIPPA-compliant form which we provide to all of our estate planning clients. HIPAA FORM.
The moral of this story is: (1) always bring the original guardianship certificate or health care power of attorney to the health care facility with you, (2) get an updated guardianship certificate one a year so that it is reasonably current; (3) if you are the health care proxy but your person isn’t mentally incapacitated, ask him or her to sign a medical release authorization and place it in the chart so that you can have access to information.
Call us for legal advice concerning the appointment of health care representatives and functioning as a guardian or power of attorney ….. 732-382-6070