HIPAA Waiver For Trusts

HIPAA waiver for trust

HIPAA Waiver For Trusts

Many people mistakenly believe that having a living trust, Last Will and Testament, and other estate planning documents in place is enough to protect their interests and assets. However, your plan may not be complete without a HIPAA waiver, which allows select people to access your records to be able to make important decisions on your behalf. Without this waiver, your loved ones may not be able to fulfill your final wishes in the event of your incapacity or death simply because they would not have access to your medical records and health care information. If your goal is to create a foolproof estate plan that takes into account all details and considerations, you may want to seek the assistance of a skilled estate planning attorney at Loughlin Law, P.A. to review your planning goals and help ensure your designated loved ones or health care agents will be able to access your medical records and health care information in the event of potential incapacity or death. Call (561) 677-8384 to set up a virtual appointment.

Can You Waive Your HIPAA Rights?

HIPAA refers to the Health Insurance Portability and Accountability Act, a 1996 federal law that aims to protect sensitive health information of patients from being disclosed without their consent or knowledge. While HIPAA rights cannot be waived in their entirety, parts of the law can be waived under limited circumstances. Under §1135 of the Social Security Act, the federal law gives the Secretary of Health and human Services the authority to temporarily modify or suspend the application of certain provisions of the HIPAA Privacy Rule during an emergency as long as the Secretary declares a public health emergency and the President declares an emergency or disaster.

The law also recognizes HIPAA waivers for research purposes. When specific criteria are met, an Institutional Review Board at a university can authorize the use or disclosure of a patient’s protected health information (PHI) without requiring the patient’s authorization. A HIPAA waiver can also be partial, which means authorization may be waived for all or some uses of the patient’s PHI for recruitment purposes when it is necessary to identify potential participants in a study and obtain their contact information.

How Does the HIPAA Waiver of Authorization Work?

The HIPAA waiver of authorization is also known as the HIPAA release form and refers to a document that authorizes the use or disclosure of an individual’s health information by or to third parties. This release must be obtained from a patient whose protected health information needs to be used or disclosed before such use or disclosure of the PHI. According to the official website of the United States Department of Health and Human Services, HIPAA authorization to release medical information is required before:

  • The PHI is disclosed to a third party for any reason other than medical treatment, payment, or other health care operations
  • The PHI is used for fundraising or marketing purposes
  • The PHI is given to a research organization
  • Psychotherapy notes are disclosed to any third party
  • The PHI is sold or shared for remuneration

When a patient signs the release form, they provide their consent to a covered entity to use their protected health information for any purposes that would otherwise not be permitted by the HIPAA Privacy Rule. If you want to learn more about how the HIPAA waiver of authorization works and whether you can benefit from incorporating one into your estate plan, consider speaking with a knowledgeable attorney at Loughlin Law, P.A.

Can You Decline HIPAA Authorization?

No one is under any obligation to sign HIPAA authorization. In fact, the Privacy Rule gives individuals the right to revoke HIPAA authorization at any time if such authorization has already been given. When a person refuses to sign a HIPAA waiver of authorization, the provider must keep a record of this fact. However, if a person declines HIPAA authorization, this refusal of permission does not prevent the provider from using or disclosing their PHI for any purpose or in any of the ways the HIPAA Privacy Rule permits without authorization.

HIPAA Privacy Rules and Medical Power of Attorney

A comprehensive estate plan should take into account the provisions of the HIPAA Privacy Rule and include a valid HIPAA waiver for authorization, especially when it comes to planning for possible incapacity. One of the key documents in incapacity planning is a medical power of attorney, which allows one individual, the “principal,” to name a specific person — called the “agent” — who is authorized to make healthcare decisions on the principal’s behalf if the latter loses the ability to give informed consent to medical procedures or otherwise make health care decisions on their own. The HIPAA Privacy Rule states that only a “personal representative” can have the same rights to the patient’s protected health information as the patient himself or herself. For this reason, a medical power of attorney must match this language to ensure that the agent can access the patient’s PHI in the event of their incapacity.

A HIPAA Waiver and Your Trust

A HIPAA authorization is important not only for a health care power of attorney but also for a living trust. When setting up a living trust, the trustor (the person who creates the trust) names a trustee who would take over the management of the trust’s property in the event of the trustor’s incapacity. However, the trustee may need access to the trustor’s medical information in order to carry out their duties, which can be problematic in the absence of a HIPAA waiver that would authorize the trustee to access the trustor’s personal health information. Incorporating a HIPAA waiver into an estate plan to ensure that it works hand in hand with your trust can be challenging without the guidance of a skilled attorney. The attorneys at Loughlin Law, P.A., can help you explore your options and ensure that the necessary HIPAA authorizations are in place so that your final wishes and other final arrangements are carried out exactly as you want. Schedule your appointment today by calling (561) 677-8384.

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