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Could the health care privacy law block your living will?

The Health Insurance Portability and Accountability Act, or HIPAA, was passed in part to protect patient privacy. Entities covered by HIPAA, such as healthcare providers and insurance companies, are generally prohibited from releasing personally identifiable health information to anyone unless the disclosure is necessary for treatment, to protect public health, or for certain other purposes considered critical.

HIPAA's privacy rules were never meant to interfere with living wills, advance directives or healthcare proxies, but problems does come up. The reason may be simply that doctors and hospitals don't fully understand the rules, or they may feel pressured to lean toward maintaining patient privacy in any questionable situation. Unfortunately, the last thing anyone needs when a loved one is incapacitated is to be blocked by someone's interpretation of federal law.

Don't let this happen to you. These days, a well-drafted living will includes a HIPAA release that affirmatively allows doctors and hospitals to talk to your designated representative. Likewise, if you've been designated as a loved one's healthcare decision-maker of last resort, check now to ensure you have the right to see protected healthcare information.

During the Ebola scare last year, the U.S. Department of Health and Human Services issued a bulletin to clarify how HIPAA should be used in emergency situations. As part of that bulletin, HHS made clear that healthcare providers should not assume that family members do or do not have access to patient information. Instead, disclosures during emergencies should be considered and reasonable:

  • In emergency situations, healthcare providers can share private medical information with any family members or other people the patient has identified as being involved in their care.
  • If the patient is incapacitated, providers should do their best to infer whether the patient would likely object to the disclosures, but providers can share information if doing so is, in their professional judgment, in the best interest of the patient.
  • Healthcare providers can also release what information is necessary to identify, locate and notify the appropriate people, such as family members and healthcare proxies.

If your living will or similar document doesn't contain a HIPAA privacy release, consider bringing it in for a tune-up.

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