Jewish World Review May 30, 2003 / 28 Iyar, 5763
Jan L. Warner & Jan Collins
HIPAA -- too much privacy?; nursing home doc could care less
http://www.NewsAndOpinion.com | Q: I nagged my father for months to get his power of attorney and health care documents in order. He finally did. Now, however, quite after the fact, I have come to the conclusion that all of our efforts were for naught. Dad was hospitalized in April, and I -- his only child -- was put through the wringer when it came to getting his medical records and talking to medical people about his care. Dad signed a health power of attorney that appointed me as his agent, but I have still been denied access. Why does it take an act of Congress to take care of family members?
A: Ironically, it was an act of Congress that has made the process more difficult for many Americans. Those of you who have been to the doctor or hospital since April 14, 2003, know what we mean. That is the date when "The HIPAA Privacy Rule" -- an acronym for Health Insurance Portability and Accountability Act of 1996 -- went into effect. Designed to protect medical records from unwarranted distribution, the immediate result has been nothing short of chaos. Doctors, hospitals and other health providers have been in a tailspin trying to make sure they comply by having patients sign many different release forms.
These federal-privacy provisions were designed to enable us to find out how our health information is used and disclosed, to limit release of our information only as is "reasonably necessary," and to allow us to review and secure copies of our health records, and even request that corrections be made.
So, as long as your father has capacity, he can sign all the releases necessary to assure that you, as his agent and next of kin, have access to all or a part of his medical records. On the other hand, if your father is incapacitated and you have been appointed as his health care proxy or agent, you should be recognized under the privacy rule as his "representative," thus being entitled to sign consent statements and authorizations in his name. The same applies when it comes to parents acting for their children.
Because the worst time to deal with this new wrinkle is during times of crisis, we suggest that you familiarize yourself with the features and benefits of these new rules. Look up government Web pages on HIPAA at http://cms.hhs.gov/hipaa/online/default.asp and www.hhs.gov/ocr/hipaa. You can find a copy of the regulations at www.hhs.gov/ocr/hipaa/finalreg.html.
Q: My mother has lived with my husband and I since Dad died three years ago. I have been her sole caregiver. As her condition continued to worsen, my job became more difficult, and I finally burned out. Reluctantly, I admitted her into a nursing home, because she needed help with all of her activities. I learned for the first time that by entering the facility, Mom lost her primary care physician of 15 years and had to use the nursing home's doctor. This was a real shocker for Mom and I, but an even bigger shock is that I have not heard from him. The nursing home staff tells me that he calls in, but Mom has not been eating well, and I am afraid she is becoming dehydrated. Is this normal procedure?
A: Absolutely not. A major requirement of the 1987 federal law that revolutionized nursing home care requires that facilities create a "plan of treatment" or "care plan" for each resident. Your mother's physician must participate in preparing this plan, which must be based on such factors as her physical and mental status; the medication, treatments, services, equipment and supplies she needs; her prognosis and potential for rehabilitation; her functional limitations; permitted activities; nutritional requirements; and safety measures to protect her against injury. The physician must sign a plan that specifies the type of services needed, who will provide them and when they will be provided.
All doctor's orders must be signed and dated, and the plan of care must be reviewed regularly and signed by the physician who established the plan. We suggest that you continue to advocate for your mother and become involved in the care planning process that should lead you to the facility's physician.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.