Wednesday, March 19, 2008

The Advance Health Care Directive and the Impact of HIPPA

The Advance Health Care Directive and the Impact of HIPPA

Nancy Foster has just found out that she has to have surgery. The abdominal pain she has been suffering results from gallstones, and her doctor recommends that the gallbladder be removed. Nancy has some other health issues that complicate her prospects for successful surgery, so she is concerned about the outcome.

She has come into my office to make sure that “all of her affairs are in order” prior to the surgery. As we discuss her questions and concerns, it becomes obvious that Nancy is focusing on what happens if she does not survive the surgery, and is concentrating on the distribution of assets from her estate.

I have to point out to Nancy that, especially with her upcoming surgery, her critical need is for an Advance Health Care Directive. Nancy is unfamiliar with a Health Care Directive, and asks me to explain.

In general, testamentary documents, such as a Will or Trust, are more useful after your death, as the major purpose of a testamentary document, especially the Will, is to distribute assets after death. But what about periods of incompetency or incapacity? We are living longer, but we are not necessarily living better. More and more of us are living long enough that we lose enough of our faculties that we become dependent on someone else for at least some of our care. In doing so, we give up control over the way we choose to live our lives. By using Powers of Attorney, legal documents allowing us to appoint someone we trust to take care of us, we can maximize our chances for quality of life if we become incompetent. To do this, the creator of the document, called the principal, appoints an agent to whom s/he delegates decision-making capability.

In recent years, the concept of the Living Will has become popular. A Living Will is a legal document that allows us to prepare for a possible time when we will not be able to make our own medical decisions by making some of those decisions now. This fundamental document has allowed patients throughout the United States to make choices now that they do, or do not, wish to have various medical treatments (cardiac resuscitation, invasive diagnostic procedures, kidney dialysis, artificial nutrition- i.e., the “feeding tube,” etc.) if they are in end-of-life situations. This document has been used by many people in recent years, and is commonly understood and respected by the medical community.

A Living Will has its limitations, however. It allows the patient to make choices on medical treatment in end-of-life situations, but most people have many episodes of medical treatment in everyday situations (such as appendicitis, broken bones or childbirth) that do not come under the heading of “end-of-life” situations. What happens then? Does the Living Will control?

The short answer is no, the Living Will has no bearing on routine medical situations. To close this gap, the Living Will has evolved into an Advance Health Care Directive, a more comprehensive legal document which combines the Living Will with a Medical Power of Attorney. The Medical Power of Attorney allows the patient (the principal) to name a trusted family member or friend (the agent) to make medical decisions for him or her if a situation arises when the patient is unable to make medical decisions for himself/ herself.

This is an important addition to the Living Will under current law. Without specific direction otherwise, the medical profession is required to do everything it can do to keep a patient alive. Only by giving the agent written authorization is the agent permitted to refuse or withdraw treatment on the patient’s behalf. In Nancy’s case, say her surgery does not go well. Maybe she has complications, or suffers a stroke or heart attack while in surgery. She will not be able to speak for herself. The fundamental question for her, and for all of us, is, if we are in a situation where we cannot speak for ourselves, whom do we want making our medical decisions during this very critical time? With a valid Advance Health Care Directive, Nancy can choose her husband and/ or her children to make decisions on her behalf. Without the document, the law states that the doctors must do all that they can to keep her alive, even past the point where she might want them to stop treatment.

The Advance Health Care Directive can also be very important for a patient who becomes mentally incompetent and cannot make medical decisions for himself/ herself. The document allows the agent to determine the course of the medical treatment for the principal, including being able to fill out insurance forms and file medical insurance and long term care insurance claims. How is the ability of a health care agent acting under an Advance Health Care Directive affected by recent legislative changes?

In 1996, Congress enacted the health insurance portability and Accountability Act (HIPPA), which is designed to protect the privacy of medical information in the United States. The act restricts the dissemination of medical information to transactions that are deemed necessary for the operation of the medical and insurance establishment (see for more information on HIPPA), but prohibits most other transfers of private medical information. While it is relatively easy for a patient to obtain copies of his or her own medical records and other information necessary to file insurance claims, HIPPA makes it more difficult to have an agent obtain medical information, even if the reason that the agent needs the information is legitimate.

To be certain that your agent can have access to your medical records under your Advance Health Care Directive, read it carefully and be certain that your document contains this, or similar language:

My agent shall have the power to request, receive and review any information, verbal or written, regarding my physical or mental health, including, but not limited to, medical and hospital records and to consent to or refuse the disclosure of this information.

Even more specific language may be found in your Advance Health Care Directive, such as the following:

The power to authorize any physician, health care professional, dentist, health plan/ HMO, hospital, clinic, laboratory, pharmacy or other covered health care provider, any insurance company and the Medical Information Bureau, Inc. or other health care clearinghouse that has provided treatment or services to me or that has paid for or is seeking payment from me for such services to give, disclose and release to my agent, without restriction, all of my individually identifiable health information and medical records regarding any past, present or future medical condition, including all information relating to the diagnosis and treatment of HIV/ AIDS, sexually transmitted diseases, mental illness and drug or alcohol use. This authority given my agent shall supersede any prior agreement that I have made with my health care providers to restrict access or to the disclosure of my individually identifiable health information. The authority given my agent has no expiration date and shall expire only if this document is revoked, or if I specifically revoke this authority in a writing delivered to my health care provider.

If your document does not contain this, or similar, language, or, if you do not have a directive, its time for a new Advance Health Care Directive. Remember, by having an Advance Health Care Directive in place, you are doing all that you can to protect your own quality of life. Your Advance Health Care Directive is quite possibly the most important document you will ever sign; take advantage of what it offers you.

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