• Law Office of Christopher R. Chicoine

Why Written HIPAA Release Must Be Included In Any Estate Plan

One of the several core documents an individual should have as part of his/her estate plan is the medical power of attorney (POA). This document generally authorizes an agent to make medical decisions on behalf of the principal. To give the POA its intended effect, and for other reasons discussed below, the POA should be accompanied by a written release of the principal’s protected health information to the agent (and perhaps others) that complies with the Health Insurance Portability and Accountability Act (HIPAA).

HIPAA Privacy Rule

HIPAA’s privacy rule protects “individually identifiable information” held by a “covered entity”. Individually identifiable information includes health information of an individual that:

  • Is created or received by a health care provider, health plan, employer or health care clearinghouse;

  • Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and

  • That identifies the individual or can reasonably lead to the identification of the individual. 45 C.F.R. § 160.103

A covered entity includes: (1) a health plan; (2) a health care clearinghouse; or (3) a health care provider. 45 CFR § 160.103.

Although HIPAA appears to relate to “electronic” health information of an individual, covered entities such as health care providers may be very reluctant to provide any health information of an individual, whether held in electronic form or other means. The penalties for violating HIPAA are significant; covered entities an incentivized to err on the side of caution and take no chances. Covered entities may therefore require a valid authorization/waiver granting the agent access to an individual’s protected health information even though the POA agent (referred to as “personal representative” in HIPAA statute) is deemed the individual/patient for disclosure purposes. 45 CFR §164.502-(g)(1).

HIPAA Release Requirement

“A covered entity may not use or disclose protected health information without an authorization that is valid.” 45 CFR § 164.508(a)(1). In other words, generally a covered entity, such as a health provider, cannot disclose protected health information without a valid written waiver. Therefore, all estate plans should include as a written HIPAA release. This may be included in the power of attorney documents or as a stand-alone document. The language used must be valid according to the relevant HIPAA statute.

Potential Reasons for HIPAA Release In Addition to Medical POA

A written, valid HIPAA release should be one of your core estate planning documents for several reasons.

First, as indicated, there are stiff penalties for HIPAA violations, such as fines and potentially jail. Covered entities will strictly construe any purported waiver/release so as to err on the side of caution. Simply conferring the authority to make health care decisions to an agent on behalf of the principal in a power of attorney (a document created under state law) does not necessarily qualify as a valid release under federal HIPAA law. That power of attorney may be virtually useless if the health care provider will not communicate with you regarding the principal’s health condition due to lack of valid HIPAA release.

Second, a valid HIPAA release allows the persons designated in the release to obtain the patient’s prior medical, mental health history. This information may very will bear on the individual’s current medical predicament, and thus allow the POA agent to make the most informed medical decision on behalf of the principal.

Third, a valid HIPAA release will provide designated persons access to information to ensure all outstanding medical bills are paid and/or to coordinate insurance coverage in that process.

Fourth, medical powers of attorney commonly confer "springing" powers. This means the authority of an agent to act on behalf of the principal springs into effect only upon the incompetence of the principal. The HIPAA authorization would be useful in situations where the principal desires the assistance of the person(s) designated in the HIPAA authorization prior to becoming incapacitated.

Contact the law offices of Christopher R. Chicoine, PLLC to discuss your estate planning needs.

Attorney, Chris Chicoine

Christopher R. Chicoine, PLLC



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