Health Information Management

HIPAA Q&A: You’ve got questions. We’ve got answers!

HIM-HIPAA Insider, May 11, 2015

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Submit your HIPAA questions to Editor Jaclyn Fitzgerald at jfitzgerald@hcpro.com and we will work with our experts to provide you with the information you need.

 
Q: It is my understanding that written authorization is required for the release of PHI even for treatment, payment, and operations (TPO) purposes. I believe this is true in New York state, but am unsure if it is also true nationally.
 
For instance, a patient who is in hospice may lack the ability to sign authorizations and consents due to deteriorated medical condition, but the physician has not deemed the patient incapacitated. In this case, may the facility release PHI for TPO ­purposes to ­caregivers who are relatives or friends but do not provide copies of properly executed healthcare proxies, living wills, or powers of attorney? Is the answer the same if a physician has declared a patient incapacitated and documented that determination?   
 
A: The federal HIPAA Privacy Rule does not require written authorization for the release of PHI for TPO.
If a patient is physically unable to sign an authorization but is mentally competent, he or she may sign with an "X" or give verbal consent in the presence of two witnesses who then document the patient's wishes.
If a patient lacks the capacity to make healthcare decisions, an agent designated in a healthcare proxy, living will, or power of attorney may make decisions on the patient's behalf, subject to limitations under state law and the specific legal document outlining the agent's powers.
 
Editor’s note: Mary D. Brandt, MBA, RHIA, CHE, CHPS, vice president of health information at the Central Texas Division of Baylor Scott & White Health in Temple, Texas, answered this question for HCPro’s Briefings on HIPAA newsletter. This information does not constitute legal advice. Consult legal counsel for answers to specific privacy and security questions.

 

 



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