HIPAA Release as part of Estate Plan in case of Long Term Care

Last week’s installment (May 19, 2017) discussed everyone should include a HIPAA Release as part of an estate plan in case of emergency.  This week’s installment will discuss the importance of a HIPAA Release when someone needs long term care.

As mentioned last week, a HIPAA release allows a person’s health care providers to share private health information with whomever is named in the HIPAA release.  Also as discussed last week, the person’s health care providers may not feel able to share such information even with the person’s Health Care Agent until the patient is unable to make decisions for himself/herself.  (Remember, the Health Care Agent is the person appointed in a Health Care Power of Attorney to make health care decisions when the patient, called the Principal for purposes of signing the HIPAA Release.)  Fortunately, or unfortunately, the privacy requirements also apply to long term care providers.

The applicability of the HIPAA’s privacy requirements to long term care providers is fortunate because we all should be able to keep our health information private and to expect our providers to keep it private as well. It helps us maintain our dignity (even in the face of the frequent indignities that accompany long term care.)

On the other hand, the applicability of HIPAA’s privacy requirements to long term care providers is unfortunate because it sometimes keeps concerned family members out of the loop.  In fact, sometimes long term care providers use the privacy requirements to stifle pushy family members.  Concerned family members can (and should) ask questions about a loved one’s care.  Concerned family members should try to participate in the quarterly care conferences required for people receiving long term care.

However, when the staff gets tired of the family member’s pushiness, the staff can invoke the HIPAA privacy requirement to explain the need to stop sharing information with the family members.  A member of management might apologize for the inconvenience and for the inadvertent sharing of information in the past (“until we realized our mistake.”)  Nonetheless, the staff might suddenly invoke the privacy requirements to exclude the pushy family member from care conferences and maybe even day-to-day discussions of the loved one’s care and condition.  The staff might even invoke the privacy requirement against a Health Care Agent if the Principal (the loved one receiving care) hasn’t been legally deemed incompetent.

The staff’s real goal might not be adherence to the privacy rules but might be extricating themselves from someone they consider a bother.  It may not be fair.  It may not be right.  Yet, caregiving staff has a tough enough job.  Shutting down someone they deem an interference might bring them a little relief.  (Not everything that we like or want is fair to others.)

So, people who want their family members and or friends to be able to advocate for them in long term care should execute a broad blanket HIPAA release as part of an estate plan.

HIPAA Release as part of Estate Plan in case of Emergency

Powers of attorney are part of a well considered estate plan.  Powers of attorney, both “general” powers of attorney and health care powers of attorney, help the principal (the person who signs the powers of attorney and extends his/her authority to someone else) prepare for a time when the principal might not be able to handle his/her own affairs.  The principal might have an accident of some sort leaving him/her unconscious, or the principal might suffer from dementia late in life.  In any such instance, powers of attorney can put someone in the position to speak for the principal and make decisions when the principal can’t.

A comprehensive estate plan should also include a blanket HIPAA release.  HIPAA, the Health Insurance Portability and Accountability Act of 1996 created the health information privacy requirements for providers of health care services.  HIPAA’s privacy rules prohibit health care providers from sharing patients’ private health information with anyone whom the patient has not authorized to receive such information.

Now, the agent appointed in the principal’s health care power of attorney is generally considered to be authorized to receive the principal’s private health information when the principal is deemed not able to handle his/her own affairs.  That makes sense.  We wouldn’t want a health care agent making health care decisions without knowing the principal’s health care situation.  That would be dangerous.

Some people believe that the health care agent doesn’t have the right to receive the principal’s private health information until the principal cannot speak for himself/herself.  That situation concerns me.  What if, as in my example above, the principal is unable to speak for himself/herself because of a car accident or for some other sudden reason?  That principal needs health care decisions made in an emergency.  Now, of course, emergency medical providers will provider the medical care necessary to deal with the emergency.  However, what if the principal has some non-obvious medical condition that the emergency personnel need to know?  If the agent has not been able to receive the principal’s health information, then no one might be able to warn the emergency personnel about the principal’s unusual condition.

Of course, the agent might not be available in an emergency situation because the emergency personnel will probably not be able to look for the agent (or even a health care power of attorney document) while trying to attend to the principal’s emergency.  Health care professionals won’t withhold emergency treatment while looking for the health care agent.  Emergencies don’t usually lend themselves to waiting for legal niceties.

In the aftermath of the emergency, though, medical providers will want permission from the principal or the health care agent to provide follow-on care.  This follow-on care will not be “emergency,” but it may be pressing.  Because of whatever created the need for emergency care (like a fall, an accident, or a stroke, for example,) the principal may not be able to make a decision or may not be able to communicate his/her decision on health care matters.  As a result, the agent may need to make these decisions and, in some circumstances, may need to make these health care decisions quickly.  When time is of the essence in a health care setting, I’d hate for the principal’s care to wait while the agent learns for the first time about the principal’s potentially complicated health conditions.

So, I prefer that the principal have thought ahead about the possibility of such an emergency.  I prefer that the principal have created a broad HIPAA release to allow the sharing of health information to the agent and the successor agents named in the principal’s health care power of attorney.

In addition, the principal might want to include others that might be involved with the agent at the time the principal needs care, such as the family attorney or an elder law attorney, or a member of the clergy.

Elder Law Attorney Dilemma

Sorry for my long absence.  I have been deluged with client files coming back from the Medicaid agencies after months of the agencies’ inactivity after a huge computer snafu.  Unfortunately, I can’t promise that I will return to my weekly schedule steadily.  There is a bit of a secondary backlog of newer applications that has built up as the Medicaid agencies, the applicants, and their attorneys deal with the pre-computer-snafu backlog.  Still, for the first time in weeks, here is a new installment of the Protecting Seniors News blog.

What is an elder law attorney’s obligation to the emotional well-being of a client?  What does an elder law attorney do after discovering information that might “break a client’s heart” when the client is emotionally vulnerable?  Does it matter that the emotionally-charged information has no impact on the legal services?

Before going further, I must give a little background on elder law attorneys.  Elder law attorneys talk amongst themselves.  We talk amongst ourselves a lot.  Elder law attorneys, especially those who focus on long term care issues, know each other and, generally, like each other.  In addition, there aren’t many of us.  We all face the same or similar issues with our clients and all must navigate the same ever-changing terrain of long term care regulations, health care provider contracts, and family dynamics.  We turn to each other as sounding boards, as confidants, and as supporters.  In this vein, an elder law attorney sometimes turns to colleagues for ideas on how to handle thorny situations.

One of these thorny situations fell into the lap of an attorney who helped a client qualify for Medicaid so she could move into a nursing home.  She had been disabled because of a severe accident in her early 30s.  Over time, her health deteriorated to the point that she was bed-bound for 8 years.  Her husband worked 8-10 hours per day and then acted as caregiver for her the rest of the day.  He also had a great deal of involvement in raising their children during the first years of his wife’s disability until the children were able to move out on their own.  After 24 years, the couple sought help qualifying the wife for Medicaid to pay for her care.  (They had mistakenly believed that nothing could be done to get her care without costing the couple all of their savings and income.)

The attorney helps her qualify for Medicaid and, at the same time, helps the husband save a great deal of their savings.

A few items of paperwork needed to be done as a follow-up to the Medicaid approval, and the attorney was working with the couple’s daughter.  The daughter mentioned something about the husband’s girlfriend.

The attorney didn’t know what to do.  The existence of a girlfriend had no impact on Medicaid eligibility.  It had no impact on care for the disabled wife.

The attorney understood the husband’s loneliness.  He had been more of a caregiver than a spouse for 24 years.  At the same time, the attorney understood that the wife might want to know that her husband had not been faithful.  Still, telling the wife might do nothing more than break her heart at a time that she already had a pretty bad life.

The attorney sought input from the wife’s social worker at the nursing home, and the social worker asked the attorney not to share the unfortunate information with the wife.

The attorney also sought input from two elder law attorney colleagues.  One colleague agreed with the social worker and suggested keeping the information from the wife.  The other colleague was concerned about the propriety of an attorney withholding information from the client.

I don’t think the attorney had any better idea of what to do after receiving advice from the social worker and the other attorneys.  I’m not sure how I would handle such a sticky situation myself.  I’m not sure that there is a good answer.