Understanding healthcare decisions and ensuring patient privacy can be overwhelming, especially when someone isn’t able to make decisions on their own. One way to manage this is through a HIPAA power of attorney (POA), a legal tool that allows someone to make healthcare and financial decisions for another person.
Understanding what a HIPAA power of attorney is
A HIPAA power of attorney is a legal document granting someone, referred to as the ‘agent,’ the authority to act on behalf of another person, known as the ‘principal.’ It allows for making healthcare decisions and accessing protected health information (PHI), which is personal and private data stored by healthcare providers. The agent is able to communicate with doctors, review medical records, and make decisions about the principal's care if that person becomes unable to do so.
Why is a HIPAA power of attorney important?
The HIPAA power of attorney becomes especially beneficial when someone is incapacitated due to an accident, illness, or age and can no longer make decisions for themselves. Appointing an agent ensures that someone trusted by the principal can step in to make decisions aligned with their healthcare preferences. The document covers not only medical treatment but also ensures that financial and legal matters related to healthcare are handled according to the principal’s wishes. The legal arrangement protects the principal's interests and provides peace of mind to both the patient and their family.
How does it work?
To put a HIPAA power of attorney in place, a person needs to carefully consider several factors. First, state laws differ on how POAs are created and enforced, so it’s necessary to understand the regulations where the principal lives. Next, the principal should clearly define what powers the agent will have—whether it's full control over all healthcare decisions or just access to specific medical information. Healthcare providers, in turn, have to make certain they are complying with HIPAA regulations and that they’re honoring the patient’s privacy when dealing with the agent.
HHS guidance and HIPAA power of attorney
The U.S. Department of Health and Human Services (HHS) has issued guidance to help healthcare providers understand how HIPAA power of attorney works. For instance, “The patient’s right of access has some exceptions, which would also apply to a personal representative. For example, with respect to mental health information, a psychotherapist’s separate notes of counseling sessions, kept separately from the patient chart, are not included in the HIPAA right of access.”
Read more: What are HIPAA Right of Access provisions?
Are there limits to HIPAA power of attorney?
While HIPAA power of attorney gives the agent broad authority, there are limits to their actions. Healthcare providers may refuse to share certain information if they believe doing so could harm the principal, which is common in cases involving suspected abuse or neglect. The principal can also set limits on what information the agent can access, specifying these restrictions in the POA document. The principal's privacy remains protected in specific situations, even after the agent steps in, by allowing these limits to be clearly outlined in the POA document.
How state laws impact HIPAA power of attorney
HIPAA power of attorney is recognized across the U.S., but each state has its own laws governing how it’s applied. Some states have specific rules regarding how these documents must be created, signed, and terminated. Although most states accept POAs from other jurisdictions, healthcare providers must stay aware of any state-specific regulations to maintain compliance with both state laws and HIPAA when handling POAs.
Read also: The HIPAA Privacy Rule's preemption of state law
What happens in emergencies?
When someone lacks a HIPAA power of attorney or another healthcare directive, emergencies can become complicated. Healthcare providers are then required to follow state laws that designate a default decision-maker, such as a spouse, parent, or close family member, depending on the jurisdiction. These laws determine who can step in to make decisions when no POA exists, but they may not always align with the patient’s personal preferences.
Challenges for healthcare providers
Handling a HIPAA power of attorney can present challenges for healthcare providers. For example, an ambiguous POA may lead to confusion about what the agent is allowed to do, especially when different states have different laws. There’s also the risk of mistakenly sharing protected health information with someone who doesn’t have the proper authority. To avoid these issues, providers should seek legal advice or work with HIPAA compliance professionals to ensure they’re following the correct procedures and maintaining the principal’s privacy.
Related: Does power of attorney grant access to PHI?
Why you should plan in advance
Given the complexity of HIPAA power of attorney, individuals need to plan ahead. Creating a clear and detailed POA ensures that their healthcare preferences will be followed, even if they can’t communicate them directly. It also provides their chosen agent with the authority to act on their behalf in a way that respects their wishes. Without a HIPAA power of attorney, families may face difficult and time-consuming legal challenges when trying to make decisions during a crisis.
Educating patients and healthcare providers
To make the process smoother, healthcare providers should work to educate their patients about HIPAA power of attorney. Patients should know their rights, the benefits of planning ahead, and how to create a POA that fits their needs. Additionally, healthcare staff should receive training on how to handle situations where a POA is in place, so they can comply with both HIPAA regulations and state laws while ensuring the principal’s preferences are respected.
FAQs
What is power of attorney (PoA)?
Power of attorney is a legal document that allows someone to make decisions for another person, such as healthcare or financial decisions if they are unable to do so themselves.
Does power of attorney give access to medical records?
Power of attorney alone doesn’t automatically grant access to medical records. The PoA must include a specific HIPAA waiver to allow access to the patient's protected health information (PHI).
How does PoA differ from a personal representative under HIPAA?
PoA covers various decision-making areas, while a personal representative under HIPAA is specifically authorized to make healthcare decisions and access medical records.
What should healthcare providers check in PoA documents?
Providers should verify the PoA’s legality, ensure it includes a HIPAA waiver, confirm the agent’s identity, and understand the scope of the agent's authority.
Can a healthcare provider refuse to honor PoA?
Yes, if the provider believes the agent poses a risk to the patient or suspects abuse, they may choose not to treat the agent as the patient’s personal representative.
Learn more: HIPAA Compliant Email: The Definitive Guide
Farah Amod
