Laweasy.com
Martin Shenkman
Estate Tax and trusts

HIPAA- The Health Insurance Portability and Accountability act.

The concept of HIPAA is to protect your personal health information (PHI). In the past, your medical information could have been disclosed or sold with no regard for your privacy rights. This needed to be stopped. In this way, HIPAA is good. On the other hand, there are often situations in which your medical information needs to be disclosed., which laws of HIPAA prevent. For example, if you or your clients have a shareholders agreement, how can you trigger a “changing of the guards?” Let’s say one of the partners becomes disabled. Usually the disability provision will jump in, and the partner will be given less and less responsibility until he is no longer a partner. But in order to trigger this provision you need a note from two physicians stating that Person X is disabled. HIPAA, however, may prevent your ability to receive these letters without the Person X’s permission. A potential response to the this problem is to make all trustee’s sign a waiver that authorizes release of PHI. However, one can revoke their release of medical info at any time. Make a trigger mechanism that dictates that if a trustee ever revokes the waiver, they lose their position as trustee.
There are three situations in which your authorization is not necessary: If its for your own treatment, if it is needed for payments to be made, and if it is in regards to a health care operation. (Furthermore, you can always get a court order, or have it accessed by the secretary of the Department of Health and Human Services, but this takes a long time and causes a lot of headaches.) If the person who’s PHI is in question has died, then the executor of their estate can authorize for its disclosure. Alternatively, a parent can authorize PHI to be shared for a minor child. Otherwise, only you can access your PHI, unless the concept of a personal representative is implemented.
Under the rules of HIPAA you can appoint a personal representative that is authorized to request and receive your medical information. You can have the agent of your living will be your personal representative. But there are still problems. Your durable power of attorney may have the responsibility of paying for medical costs for in-home care or a nursing home, and therefore, they may need to access your PHI. But the companies will not talk to them, because of HIPAA rules. According to HIPAA, your personal representative must make health related decisions for you. The question is whether paying for the nursing home, or buying a new wheelchair is a sufficient medical decision to be considered a personal representative. When you name a different agent for your durable powers and for your health care proxy, which many people do, who becomes your personal representative? A final provision under HIPAA is that only the minimum amount of information necessary to achieve intended purposes can be disclosed. Furthermore, mental health information and psychotherapy notes, generally speaking, do not get disclosed unless you expressly state it.
Nearly every estate transaction as well as many business and financial planning will address HIPAA issues. You must plan ahead for everything