A client for the most part exercises his or her own privacy rights. However, some persons may be legally or otherwise incapable of applying their privacy rights. Moreover, an individual may authorize another person to act on his or her behalf. In general, treat the personal representative as the individual unless a restriction occurs.
- Adults and Emancipated Minors Examples of an adult’s or emancipated minor’s personal representatives include a person who has a health care power of attorney, is a court appointed legal guardian, or has a general power of attorney or power of attorney that includes a health care decision clause.
- Minors Usually the parent not the unemancipated minor has the right to receive a minor’s PHI. Exceptions to the unemancipated minor parent’s exercising privacy rights concern when the law allows a minor to consent to the treatment, a court or other law allows a person other than the parent to make treatment decisions for the minor, or the parent agrees to a confidential arrangement between a physician and the minor.
- Neglect, Abuse, and Endangerment Issues Do not treat the person as the individual’s personal representative if:
- staff has a reasonable belief that (1) the client has been or may be subjected to domestic violence, abuse, or neglect by such person or (2) treating such person could endanger the individual; OR
- staff in the exercise of professional judgment decides that it is not in the best interest of the individual to treat the person as the individual’s personal representative.
- Other Individuals Under certain circumstances, HIPAA permits disclosures “. . . to a family member, other relative, or a close personal friend of the individual, or any other person identified by the individual, the protected health information directly relevant to such person’s involvement with the individual’s care or payment related to the individual’s health care.” Before disclosing information to one of these persons, staff must:
- Obtain the client’s agreement; OR Give the client an opportunity to object to disclosure, and the client does not object; OR
- Staff infers from the circumstances based on professional judgement that the individual does not object to the disclosure; OR
EXAMPLE: A MO HealthNet participant is the ward of a public administrator. Staff contacts the public administrator’s office and speaks to a staff member working for the public administrator about the case.
- If the client is not present due to his or her incapacity or emergency circumstances, staff concludes that it is in the best interest of the client to disclose PHI that is directly relevant to the person’s involvement with the client’s health care. This is the type of situation that may occur when a family member or relative is applying for and handling the affairs of their hospitalized, institutionalized, disabled, blind, or elderly relative
- Deceased Clients PHI of a deceased client is protected by HIPAA. However, consider the person with the legal authority to act on behalf of the deceased client or the deceased client’s estate to be the personal representative e. g., an executor of the estate.