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When It Comes to Privacy and Medical Decisions, Who’s in Charge?

Posted on: September 27th, 2017
The Community Link, a newspaper serving eastern Ventura County, published "When It Comes to Privacy and Medical Decisions, Who's In Charge?" in the August 2017 issue. The article is published in its entirety below, or see The Community Link, August issue - page 9.

When It Comes to PrIvacy and Medical Decisions, Who's In Charge?

By Terri Hilliard Olson

One of the most basic of patients’ rights is the right to privacy. They can decide to whom, when, and what extent their health information is disclosed, including medical diagnoses, treatments, prescriptions, insurance, and clinical research and mental health records.

For patients, violating their privacy could lead to personal embarrassment, public humiliation, and discrimination. So, in 1996, Congress initiated the Health Insurance Portability and Accountability Act, also known as HIPAA. Essentially, and in part, the law mandates the protection and handling of confidential health information.  Violations of the law by health professionals or others can result in jail time and/or heavy fines.

HIPAA ensures no one can gain access to your health care information or make decisions regarding your care without your expressed, written permission. One part of the law is its Privacy Rule that sets the parameters on who can look at and receive health information, which is protected whether in electronic, written or oral forms.

Most of us believe we can make our own decisions concerning our health. We decide all manner of health care issues on our own, including choosing our doctors, hospitals, and treatments. But what if we become incapacitated and unable to communicate our needs? Who’s in charge? How are we protected to ensure our wishes will be carried out, if we can’t make those choices?

Surely, our spouse or loved one can step in, if there is an emergency, right?  No!
While the Privacy Rule, aims to keep your medical information private and prevent unnecessary disclosures of your protected health information, that doesn't mean that your doctor can't talk to anyone about your health information. Your doctor can still disclose some information without your consent, especially if it is related to treatment or health care operations. HIPAA is still required for medical services billings.

Further, your doctor won't be able to disclose anything to your family members, unless you authorize it. Technically, if you have a baby, your pediatrician would not even be allowed to announce your newborn to your family members waiting outside of the Delivery Room, unless you provided consent.

Let’s say you have a student in college and he or she is involved in an accident. Without prior consent, you may have a difficult time receiving information on your child’s condition or treatment.

The Role of the Advance Health Care Directive

So, how is privacy maintained and how do you assign a “back up” to properly represent you, if you are incapable of making your health care decisions?  Doctors, hospitals, and health organizations must comply with HIPAA, under strict penalty of the law when violated, but you have the control, even if you are unable to communicate your health care wishes.
Whether you have an estate plan or not, everyone should initiate an Advance Health Care Directive (AHCD), which provides a means for specifying instructions concerning how to handle one’s health issues, if he or she cannot do it on their own. It also allows access to medical information to others you designate in emergencies, including in life and death situations, satisfying HIPAA privacy requirements.

Part of the AHCD is a Power of Attorney for your health care. You have the legal right to name someone else to make decisions for you, whether you are capable on your own or not. You can assign an alternate, if your first choice of agents is unable or unwilling to make decisions for you. You can also designate your primary physician, organ donation, and share how you should be cared for, when you can no longer communicate that information yourself.
Unless you limit the authority for your representative, he or she can make all decisions for you on your health care, including consent or refusal for treatment and surgical procedures, selection of health care providers and facilities, direct provision or withhold/withdraw nutrition and other life support, and organ donation, autopsy and disposition of remains.

If you have a college bound student, make certain his or her health care instructions and agent(s) allowed to act on their behalf are designated before they start their next semester. Especially in case of life threatening emergencies that can occur, be prepared in advance so that valuable time can be saved and to avoid court intervention in your loved one’s care.
When you are unable to make your own decisions on medical treatment and health care services, having your Advance Health Care Directive in place will make certain your wishes are carried out, breaking through any possible HIPAA logjam. 

If you would like to learn more about your privacy rights and planning ahead, give us a call 805-201-2552 or e-mail thilliard@terrihilliard.com.  
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