Your personal health information is something you probably consider private. But until fairly recently, there were no national uniform guidelines for keeping medical data confidential. In 1996, however, the Health Insurance Portability and Accountability Act (HIPAA) created nationwide standards for maintaining the privacy of health-related information.
A major step in health data security, HIPAA protects the information in your medical records from being disclosed to others without your authorization. Since advance directives such as Living Wills and Do-Not-Resuscitate orders are contained in your medical records, the protections of HIPAA help to keep your planning for disability private.
In addition, HIPAA provides for the possibility that that, if you so choose, only you, your healthcare provider, and your Healthcare Proxy have access to your medical records.
However, HIPAA also may make it more difficult for those people you want to have access to your medical records--a trustee, healthcare proxy, etc.
If you live in Michigan and need experienced estate planning help, contact Michael Einheuser for a free consultation. Michael helps families in Bingham Farms, Troy, Farmington Hills, Rochester Hills, Southfield, West Bloomfield Township, Bloomfield Township, and the surrounding Michigan areas.
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HIPAA states that your Protected Health Information (PHI) cannot be used or shared without your written permission unless HIPAA allows it. For example, without your authorization, your provider generally cannot share your PHI with your employer or with marketing agencies.
Your PHI is any “individually identifiable” information regarding:
Your PHI also includes your name, address, phone number, Social Security number, birth date, and employment information.
HIPAA law helps to protect this information. Under the law's Privacy Rule, health care providers must keep your PHI confidential unless your information subject to some exceptions, of unless you waive your HIPAA protections.
Exceptions to the HIPAA Privacy Rule usually arise when a state law regulating the disclosure, use, or reporting of PHI is more stringent than HIPAA. If a state law is more stringent than HIPAA, it remains valid.
Any Waiver of HIPAA protections will usually occur in one of two basic ways. One is by signing a HIPAA waiver. The other is by bringing a malpractice or personal injury suit against the healthcare provider.
HIPAA affects your estate planning strategies in a variety of ways. For example, if you create a Living Trust, your trustee may need access to your medical records in order to establish your medical condition or mental capacity. HIPAA makes this more difficult.
Furthermore, if you create a Healthcare Power of Attorney, your healthcare proxy may be unable to access you medical records and thus establish your incapacity to make informed medical decisions. As a result, your Living Will or Do-Not-Resuscitate (DNR) order would not go into effect.
Essentially, there is a "Catch-22" in effect. Under HIPAA, if you are incapacitated, you cannot grant access to the medical records which prove that you are incapacitated. And your healthcare proxy under the Healthcare Power of Attorney cannot give permission to access the medical records because the proxy has no authority until your incapacity is established.
In addition, although HIPAA safeguards your medical records after your death, the amount of information available to the executor of your will, or to another attorney-in-fact, may be limited.
Thus, any estate planning documents that relate to planning for disability should be created to comply with HIPAA. These documents should contain provisions that will allow what HIPAA terms your "personal representative" to obtain your medical information while complying with the HIPAA Privacy Standards.Return from the HIPAA law article to the Home page by clicking here.