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Do Your Living Will and Power of Attorney Meet the HIPAA Test?

In April of 2003, new federal privacy regulations took effect which may have an impact on your Living Will and Power of Attorney. Specifically, the new regulations prohibit the release of medical information to unauthorized persons. Health care providers, such as doctors, nurses and hospital personnel, have all become very nervous about discussing patients' medical conditions with anyone other than the patient for fear of being hit with heavy fines. Recently, I have already heard stories involving persons who were denied medical information about a loved one because they were not authorized to obtain that information. In one case, a daughter was unable to obtain medical information about her elderly mother. In another, a husband could not find out about his wife's medical condition. While such stores are rare, I find that I am hearing them more frequently.

All of this arises out of the federal Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. HIPAA started out with noble intent. Congress wanted to make it easy for persons and employers to transfer their health care insurance from one health insurance company to another. To facilitate this, Congress set up a plan to allow health insurers to transfer information electronically, including via the Internet. However, Congress, as well as privacy groups, were concerned about the potential for health care information to be disclosed to unauthorized individuals and groups. Congress called upon the Department of Health and Human Services to develop regulations to insure the confidentially of health care information. Those regulations were adopted in April 2003. The regulations contain provisions prohibiting the release of confidential information and calling for penalties for the disclosure of confidential information ranging from $100.00 fines for accidental violations, up to $250,000.00 fines and 10 years in prison for the release of information for commercial purposes. Given the seriousness of these penalties, it is no wonder that the health care community may be hesitant to discuss a patient's medical condition with others.

These new regulations could have a drastic impact upon your Living Will and Power of Attorney. Many persons have signed Living Wills and Powers of Attorney with the intent that someone else can make health care decisions on their behalf in the event that they are unable to make those decisions for themselves. However, in light of HIPAA, heath care providers may not be willing to discuss your medical condition with your representatives unless your documents contain express HIPAA authorizations. Thus, one of the primary reasons why you have these documents may be defeated.

Does your Living Will and Power of Attorney contain a HIPAA authorization? Basically, any Living Will and Power of Attorney drafted before 2003 probably does not contain a HIPAA authorization.

If your estate planning documents do not contain express HIPAA language, now may be a good time to have those documents revised to include HIPPA language so that your wishes will be carried out.

If you have any questions regarding how HIPAA may affect your documents, please call our office for an appointment.