HIPAA Compliant Living Will: Is yours up to snuff?

Imagine this scenario: Something tragic happens to a loved one that puts them in the hospital. They are incapacitated and unable to make decisions on their own. Thankfully, they have a health care directive (aka “living will”). The health care directive describes in detail what decisions they want made for them in times like this. Your loved one trusted you to make those decisions. You go to the hospital and ask the doctor about their condition so that you can make an informed decision. The doctor refuses to give you any information about your loved one's condition.

Unfortunately, this is a very real scenario

Congress passed a new federal privacy regulation in 2003 that impacts Health Care Directives and Durable Powers. The regulations arose out of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The new regulations were targeted at making it easier for health insurance information to transfer between health insurance companies. Congress, at the same time, took it upon themselves to increase privacy protections in the existing law. The regulations include prohibitions on the release of confidential information. Penalties include up to $250,000 and ten years in prison for a violation.

That's a big penalty for a breach of privacy

Caught up in the fallout of the 2003 regulations are Health Care Directives and Durable Powers of Attorneys. These documents may end up ineffective for accessing health care information if they do not contain the right HIPAA compliant language. In Minnesota, we do have exceptions to HIPAA allowing a doctor to provide information based on a health care directive. But what if you are in another state? What if the medical facility decides they want a HIPAA waiver anyways. Your designee, in other words, could lack the information needed to make important decisions.

Takeaway

A living will is a vital part of any estate plan, and is relevant for anyone of any age. But they need to be HIPAA compliance in order for them to be effective. If not, then you may be faced with a very scary and dangerous scenario. If you need counsel to review your current health care directive or need help drafting a new one, please contact Signature Law for a free consultation.