Is a HIPAA-release required for Massachusetts Health Care Proxies?

What is a HIPAA Release?

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) is a federal law that protects the privacy and security of individuals’ medical records in the United States. Generally, HIPAA prohibits health care providers and insurance companies from disclosing a patient’s medical information to third parties without the patient’s prior written authorization in the form of a HIPAA Release. However, what happens if you become incapacitated and cannot provide written authorization to allow your health care agent to see your records?  The experienced and knowledgeable attorneys at The Sullivan Firm, P.C. will draft the necessary documents as part of your estate plan to ensure that your health care agent can review your medical records if the need ever arises so they can make an informed decision about your treatment.

What is a Health Care Proxy?

In Massachusetts, any person over the age of 18 may execute a health care proxy. A health care proxy is a legal document that designates an adult, called an agent, to make medical decisions on behalf of another, known as principal, if the principal becomes incapacitated. An agent can be almost anyone but is the most frequently a spouse, child, parent, relative, or close friend. According to Massachusetts General Law chapter 201D, §5, known as the Massachusetts Health Care Proxy Act (the “Act”), an agent is responsible for making health care decisions for the principal as if the principal was making them personally.  An agent may be asked to make decisions about life-support, such as ventilators, feeding tubes, artificial hydration, or other medical treatments.

Keep in mind that the agent cannot make those decisions without guidance. Specifically, Section 5 of the Act instructs him or her to consult all of the principal’s health care providers and consider acceptable medical alternatives regarding “diagnosis, prognosis, treatments and their side effects.”  After consultation, the agent makes a treatment decision in accordance with the principal’s “religious or moral beliefs,” or if those beliefs are not known to the agent, then the agent must make a decision based upon the agent’s perception of the principal’s best interests.

When would I need both a HIPAA and Health Care Proxy?

An agent may need to consult the patient’s medical records to make the best decision for the principal. While Section 5 of the Act grants the agent the right to review confidential patient information  to make this decision, the HIPAA privacy rule, as stated above, appears to conflict with Massachusetts Health Care Proxy law if there is no authorization on file with the health care provider. Analysis of the HIPAA rules, however, reveals that a principal’s personal representative, as designated by state law, may review confidential patient records. Therefore, in Massachusetts, a health care provider may allow an agent to review a principal’s medical records without prior written authorization.

Is there a better alternative?

There are alternatives to relying upon statutory analysis to resolve this conflict. The better practice for an estate planning attorney to follow when drafting a health care proxy for a client is to include language in the document itself expressly permitting the agent, in accordance with Massachusetts law and HIPAA, to review all confidential medical documentation necessary to make an informed decision.  Additionally, people suffering from a life-threatening illness should consider having their physician write a “Medical Order Regarding Life-Sustaining Treatment” (“MOLST”).  As the name indicates, a MOLST is a medical order written by your physician obligating health care providers to follow if the need arises. A MOLST becomes effective as soon as it is signed, unlike a health care proxy which only becomes effective after incapacitation. A MOLST may not be a viable option for everyone. Therefore, you should consult your physician to see if your medical condition meets the specific legal requirements.