The U.S. Department of Health and Human Services has begun enforcing HIPAA by imposing large financial penalties against healthcare providers for HIPAA violations. (In the first case, a healthcare provider received a $4.3 million civil penalty for failing to provide timely personal health information to patients upon their request; in the other, a different provider agreed to a $1 million settlement for disclosing patients’ personal health information without their approval).
If healthcare entities intensify their efforts to avoid HIPAA financial penalties, we may see a few things happen:
- Patients themselves may have an easier time gaining access to their own medical information. And some may even get it more quickly. At the same time;
- Patients’ family members — and others whom the patient wants to have access — may have a harder time getting the patients’ information.
What does this mean for your legal needs?
- Everyone need a Health Care Power of Attorney (HCPOA) more than ever. This document may increasingly do double-duty. In addition to its primary function, the HCPOA also serves as a de facto HIPAA Release. The HIPAA law expressly authorizes the health care agent to receive the patient’s personal health information (called “PHI” under HIPAA).
- You may increasingly need a separate HIPAA Release designating individual(s) — in addition to the health care agent — who can receive their medical information. Why? Peopleoften rely on someone other than their health care agent to help them navigate the healthcare system. This might be another family member, a friend, or a neighbor. Healthcare providers may be increasingly apt to request written authorization from the patient to deal with any of these folks on your behalf.
Alternatively, I address this need within the HCPOA document itself, rather than drafting a separate HIPAA Release. I have created a section in the HCPOA naming additional individuals to receive PHI under HIPAA, but who are not authorized as health care agents.
The stricter HIPAA enforcement may also create heightened challenges particular to college students and other young adults. More to follow.