Your Family Needs You to Have a HIPAA Release Form

While privacy is obviously something we think that we want more of, many have had the problem of obtaining the cooperation of health care providers to give out personal information when a loved one is ill. This is not only a problem when we attempt to assist elderly family members, but also college age "children." That's right; you might think of your 18 year old as a child, but the law considers him or her to be an adult.

Privacy requirements are imposed by law. While California has its own privacy statute, the principal federal law is the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").

Many do not realize that in some circumstances a healthcare provider is not required to discuss healthcare decisions or conditions with even the patient's spouse. For example, a recent publication of the Department of Health and Human Services makes it clear that, under HIPAA, hospitals and doctors are not required to communicate information even to close family members when the patient is unconscious. Doctors and hospitals have wide discretion based upon what they see as the "best interests" of the patient (whatever that means).

For example, that DHHS publication states: "If the patient is not present or is incapacitated, a health care provider may share the patient's information with family, friends, or others as long as the health care provider determines, based on professional judgment, that it is in the best interest of the patient." (Bold emphasis mine.)

Here are some specific examples from the same DHHS publication:

"• A surgeon who did emergency surgery on a patient may tell the patient's spouse about the patient's condition while the patient is unconscious.

• A pharmacist may give a prescription to a patient's friend who the patient has sent to pick up the prescription.

• A hospital may discuss a patient's bill with her adult son who calls the hospital with questions about charges to his mother's account.

• A health care provider may give information regarding a patient's drug dosage to the patient's health aide who calls the provider with questions about the particular prescription." (Bold emphasis mine.)

This is legal language. "May" means discretionary. "Shall" is mandatory. In summary: They don't have to tell you anything. It behooves all of us to make sure that we all sign HIPAA release forms authorizing the disclosure of private medical information of our close family members in case of an emergency.

You should contact an attorney to assist you in preparing a HIPAA release form, as part of an overall estate plan. Having a release may help you persuade reluctant healthcare providers to provide the information you need to make informed decisions about your loved one.

Disclaimer: The information in this article is not legal advice, and the use of it does not create an attorney-client relationship. Any liability that might arise from your use or reliance on this article or any links from this article is expressly disclaimed. This article is not to be acted upon as if it were legal advice, and is subject to change without notice, or may include obsolete or dated information, or information not relevant to your jurisdiction. If you require legal services, you should consult with an attorney.

As a a licensed attorney located in the Los Angeles San Gabriel Valley, Larry Stratton is in a position to coach and advise you, and to help you plan for your future. The Law Offices of Larry D. Stratton specializes in estate planning, business formation and appellate work. Larry Stratton also blogs on estate and financial planning issues at Planner's Thoughts.

Larry Stratton is a graduate of Whittier College School of Law, which is a member school of the ABA and the AALS. He has represented numerous clients in the California Court of Appeal, and is admitted to practice in all California courts, the Ninth Circuit Court of Appeal, and also the United States Supreme Court. From 1983 to 1984, he was a member of the Whittier Law Review.

Larry Stratton is also a Registered Investment Advisor, and currently speaks on estate and financial planning topics in Southern California.