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PAUL PREMACK, JD, CELA*
8031 Broadway
San Antonio, TX 78209
*Licensed in Texas
BENJAMIN PREMACK, JD** 
11900 NE 1st Street
Bellevue, WA  98005
**Licensed in Washington State & Colorado


San Antonio Probate, San Antonio Estate Planning, San Antonio Elder Law

 
 
Paul Premack, Express-News Banner

San Antonio Express-News
Copyright 2008, Paul Premack
July 8, 2008

Department of Health Comments a Little Too Reassuring 

Many of us read and enjoy the nationally syndicated column written right here in San Antonio by Heloise. In the Express-News on June 24, 2008 the US Department of Health and Human Services (HHS) wrote Heloise to "set the record straight" about the HIPAA medical confidentiality rules.

In May, "Jan" wrote Heloise to recount how a hospital denied her access to information about her husband, who was in the emergency room. The HHS representative (Mr. Wilkinson) asserted the hospital was in the wrong because HIPAA "permits the hospital to explain his condition to a spouse".

However, Mr. Wilkinson also stated that HIPAA "does not require hospitals to disclose patient information in these situations. So, if you are told by staff that HIPAA prevents them from sharing relevant information, you may want to talk to a supervisor."

Mr. Wilkinson’s comment that the hospital is permitted to release the information is modified by his statement that the hospital is not required to release the information. He does not mention that the government has created a monetary penalty that must be paid if the health care provider wrongly releases private medical information. Hospitals and doctors are intimidated by HIPAA, and their practices under it have been exceptionally conservative. Thus, his reassurance goes a bit too far by creating the impression that HIPAA is easily circumvented.

Jan’s experience of being denied access to critical health information about her spouse is far more typical than HHS would have you believe. You do not want to be put into the position of being denied information about your ailing family member at a critical moment. Even the delay of hunting down a supervisor, convincing that person of your need and getting that person to communicate with staff would be, at the least, frightening and inconvenient and, at the worst, a delay that could harm your family member.

Jan’s husband was conscious and somewhat capable of communication. Mr. Wilkinson implies that her husband should have clearly identified Jan to the hospital and authorized them to share information with her. But Jan’s letter to Heloise said her husband had "horrible pains" and "was too ill to even go to the desk and find out the name of the hospital". He was in the emergency room for a reason. He needed and wanted his wife, and the HIPAA restrictions did in fact get in her way.

Though Mr. Wilkinson says there are no special forms and permission need not be in writing, he is again being too optimistic. My advice is that everyone (and here I am addressing Texas residents) have a written Medical Power of Attorney which identifies an agent with authority to make medical decisions for the patient.

The Medical Power of Attorney is a written document that was authorized by the Texas legislature several years before the federal government issued the HIPAA rules. It should be modified to address HIPAA explicitly by stating that the agent is fully authorized to access all private health information about the patient, and by identifying others (like adult children) to whom you grant access. Talk to your lawyer and be sure you have the paperwork necessary to avoid the situation which Jan and her husband faced.

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Disclaimer: This column answers a specific legal question asked by an individual in Texas. The answer may or may not match your individual situation. Be careful not to treat this column as specific legal advice, as it may not meet your individual needs. It may give you a solid basis for discussion with your own attorney.  You should consult with your personal attorney before you take any action on this or any legal issue. Also, please be aware that laws change, so  this column is valid only as of the date it was published. This communication does not create an attorney-client relationship between the author and the reader.

 

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