A person with the legal authority to make healthcare decisions on behalf of the individual The HIPAA Privacy Rule provides a foundation for state-protected rights that allow individuals to control certain uses and disclosures of their protected health information. In addition to these rights, the Privacy Rule provides individuals with the ability to access and amend this information, as well as the right to settle certain disclosures. The Department recognizes that individuals may be legally or otherwise unable to exercise their rights or simply choose to appoint another to act on their behalf with respect to those rights. According to the rule, a person authorized (under state law or other applicable law, for example: Tribal or Military Law), to act on behalf of the individual in health care decisions, the “personal representative” of the person. Paragraph 164.502(g) specifies when and to what extent the personal representative is to be treated as an individual for the purposes of the rule. In addition to these formal designations of a personal representative, 45 CFR Rule 164.510(b) addresses situations where family members or others involved in health care or payment for personal care may obtain protected health information about the person, even if they are not expressly authorized to act on behalf of the individual. In general, the extent of the personal representative`s power to act on behalf of the individual in accordance with the Data Protection Regulation results from his or her authority, under applicable law, to make decisions regarding the individual`s healthcare. Where the person has broad authority to act on behalf of a living person in health care decisions, as is typically the case for a parent with respect to a minor child or the legal guardian of a mentally incapable adult, the covered entity must treat the personal representative as an individual for the purposes of disposition. with some exceptions. (See below for situations of abuse, neglect or endangerment and state law enforcement with respect to parents and minors). If the authority to act on behalf of the person is limited or specific to certain healthcare decisions, the personal representative should only be treated as an individual with respect to protected health information relevant to the representation. For example, a person with limited health powers over a single particular treatment, such as the use of artificial vital functions, is that person`s personal representative only with respect to the protected health information related to that health choice.
The covered entity should not treat that person as a natural person for other purposes, such as signing an authorization to disclose protected health information for marketing purposes. Finally, if the individual is authorized to act on behalf of a deceased person or their estate, which does not necessarily include the authority to make health care decisions, the covered entity must treat the personal representative as the individual with respect to protected medical information relevant to that personal representation (e.g. An executor has the right to access any protected information about the deceased`s health relevant to these responsibilities).1 State or other laws should be consulted to determine the personal representative`s authority to receive or access the person`s protected health information. Examples: Power of Attorney for Health Care Legal Guardian appointed by the court General Power of Attorney or Continuing Power of Attorney, which includes the authority to make decisions in the health care sector A person with the legal authority to act on behalf of the deceased or the estate (not limited to persons with decision-making authority in the health care sector) parents and minors. In most cases, under the rule, a parent, guardian or other person acting in loco parentis (collectively, the “parent”) is the minor child`s personal representative and can exercise the minor`s rights with respect to protected health information, as the parent is generally empowered to make decisions regarding the health care of their minor child. When a person dies, the personal representative of the deceased is the executor or administrator of the deceased`s estate, or the person legally authorized by a court or state law to act on behalf of the deceased person or their estate. The personal representative of a minor child is usually the parent or legal guardian of the child. State laws may affect guardianship. However, the Privacy Rule sets out three circumstances in which the parent is not the “personal representative” with respect to certain health information about the minor child.
These exceptions generally track the ability of some minors to receive certain health care without parental consent under state or other laws or standards of professional practice. In these situations, the parent does not control the minor`s health decisions and therefore, according to the rule, does not control the protected health information related to this care. The three exceptional circumstances in which one of the parents is not the minor`s personal representative are: Exceptions: See below for discussion of situations of abuse, neglect and endangerment. 1Note that the confidentiality rule does not apply to the medical information of a person who has been deceased for more than 50 years. Therefore, a personal representative does not have to authorize the disclosure of the deceased`s health information, and a personal representative has no rights under the privacy rule with respect to that information.
