Family Members: What Are You Allowed to Know – Understanding HIPAA
The Health Insurance Portability and Accountability Act of 1996 (HIPAA) created a national standard for the protection of certain types of health care information. The U.S. Department of Health and Human Services issued a “Privacy Rule” in 2002 to implement the requirements of HIPAA.
The Privacy Rule limits the circumstances in which individually identifiable health information can be used and disclosed by covered entities (health care insurers, providers and clearinghouses). When a loved one has severe mental illness, family members and other caregivers need to understand what kind of information they can obtain regarding the diagnosis, treatment plan, medications, etc.
HIPAA establishes minimum protections for the release of such protected health information (PHI). Generally speaking, when a state law and HIPAA conflict, HIPAA preempts the state law. However, state laws that prohibit or further restrict the disclosure of protected health information will prevail even if HIPAA would permit the disclosure. Many states have their own laws governing confidentiality – several of which are more stringent than federal law.
When faced with a HIPAA hurdle, it’s important to find out what your state’s law says. IMPORTANT: Providers are not precluded under HIPAA from accepting information from families or others who are knowledgeable about the individual and his or her treatment needs. A good medical provider will want to know all the relevant information available. If your loved one’s provider refuses to listen to your information, contact a supervisor such as the hospital administrator, insist that you be heard, and/or submit written information.
In Washington, The Health Care Authority (HCA) follows HIPAA rules for Apple Health (Medicaid) and Public Employees Benefits Board (PEBB) programs and must provide privacy protections for personal and health information collected about members, applicants, state employees and retirees, even after death. This includes written, spoken, and electronic information.
If you want the Health Care Authority to release your information to someone (a relative, friend, legislator, etc.), you must sign an authorization form. For information on when we might release information without your signed authorization, such as to a health care provider, see your notice of privacy practices. Your provider may have their own authorization ROI form.
I Can’t Find Out Information About My Adult Child
As stated before, if your child is an adult, they must sign an ROI, or authorization form in order for you to learn anything health related. You may not even get an answer if they are in a specific treatment center or not. Because of HIPAA, providers are bound by law to not tell others, unless authorized by the patient, about anything health related.
To overcome this, you will have to work with your adult child either through the treatment center, jail, prison, or hospital to have them sign an ROI. If they are not in their right mind, you can have a lawyer step in, but know that you may not get answers or information you want.
In order to work around this for next time, you will need to petition for guardianship. Guardianship is a legal relationship that allows one individual (the guardian) to make personal decisions for a person found to lack the capacity to maintain their own health and safety (the ward).
Guardianship laws vary from state to state, and the process depends on your state’s laws. It is essential to thoroughly familiarize yourself with the relevant laws in your state to determine whether they are suitable for your loved one’s circumstances. In addition, guardianships in one state may or may not be honored if your loved one is hospitalized in another state.
The National Guardianship Association (NGA) is another resource. The NGA recommends guardianship when alternatives have proven ineffective or are unavailable. Among the alternatives the NGA identifies:
- Representatives or substitute payees
- Case/care management
- Durable powers of attorney for property
- Durable powers of attorney for health care (a form of advance directive)
- Community agencies/services
Learn more about Guardianship in Washington.