Modern Estate Planning Blog

Well, OK they will tell you but no one else because they are shackled by a law called HIPAA.

If you haven’t come across this term you are either lucky or just didn’t realize it affected you. HIPAA – the Health Insurance Portability and Accountability Act – has noble goals, one of them being to protect your healthcare and medical information from prying eyes. As you might have figured out, as lofty as its goals are this law really doesn’t work the way it was meant to. But the problem with the application for most of us ISN’T that someone will be able to get the information, but rather that the people that you want to have it WON’T be able to have access, unless you put them on the list.

The law itself actually allows (but it is not mandatory) certain classes of people access, your spouse, your kids, your parents – makes sense these are the ones you really want, BUT the law is one thing and practice and implementation are another. Hospitals and insurance companies in order to limit their liability (did I mention that violations carry hefty fines for unauthorized disclosure?) have taken a hard line – if it’s not you ,they won’t release the information.

So what kind of information are we talking about? Ever have a problem with an insurance claim or medical charge? Have trouble deciphering your EOB (explanation of benefits)? Want to talk with your spouse’s doctor or your aging parent’s doctor? Want to straighten out an insurance error for your spouse? Want to find out what hospital room your father is in? That’s all protected medical information.

I had my own eye-opening experience with HIPPA when my mother-in-law was in the ICU at the end of her battle with cancer. My father-in-law (who was her agent under her Advance Healthcare Directive) was too distraught to make many of the necessary decisions, but the doctor wouldn’t share critical information with either my husband or his sister due to concerns about violating HIPPA. As you might have guessed my mother-in-law’s Advance Directive was old and did not include HIPPA language. The doctor finally made a wink-wink agreement to share info with my sister-in-law who, as a PhD in microbiology, became a “consulting doctor”. This can be tough to do if you don’t have a relative who is a doctor handy.

Unfortunately, this is not an unusual occurrence.

Although HIPAA was signed into law in 1996, proposed regulations didn’t appear until 1999 and were not approved until 2000 with major changes in 2002. The Privacy Rules were not enacted until April 2003. Because of this delay lawyers didn’t really start including HIPAA language until about 2004.

If your Advance Healthcare Directive is more than 6 years old it won’t include HIPAA language. I have also seen Healthcare Directives created in the last 3 years that did not include HIPAA language.

So what can you do?

Make sure your Advance Healthcare Directive includes HIPAA language so your agent has access and can carry out their job helping you. Have a standalone HIPAA Release to authorize not only your healthcare agent but other hand selected people to access your information.

Oh, and one last thing – make sure the powers given to your healthcare agent and included in your HIPAA Release become effective when you sign the documents. When you need someone to help with medical issues it really doesn’t make sense to make them jump through hoops.