Health Care Power of Attorney, HIPAA and Hospice

 

When someone asks me what a health care power of attorney or MDPOA (medical durable power of attorney) is for, it usually takes a bit of an explanation.  Sometimes I will talk about the roots of “informed consent” in medical treatment deriving from the Nuremberg trials.   World War II tragically produced many sound principles of international law.    In our country, we sometimes speak about rights and autonomy in the context of medical care, but longevity and medical advances have provided a new proving ground for patient autonomy.  We have the right to decide alongside the right to not decide.  Beyond the advance directive, which seems to have its own well-run PR department, few people are aware of the MDPOA and its significance and utility in today’s world of medicine.  Making treatment choices in advance becomes particularly important when a frail elder and family members face difficult decisions about treatment choices.  These matters are often made more difficult by the way our health care “system” works in this context, the Medicare context, where doctors are paid per intervention, often leading to worse outcomes for patients  those patients who tend to be over treated.  Indeed, when people make their wishes known to family member and empower another to decide for them in a MDPOA , that empowerment alone can often lead to better outcomes.    So empowerment about health care decisions, considering the “what happens if. . . “ along with the “what happens when. . . . “ can help give our lives meaning by considering the end of our lives – not just as a cessation of life but in the context of its meaning.

I’ll quote Ralph Waldo Emerson here

“The purpose of life is not to be happy. It is to be useful, to be honorable, to be compassionate, to have it make some difference that you have lived and lived well.”
Whatever your purpose is, make sure that you have the difficult conversation in advance.  It will ease your mind and the minds of your dear ones.  They will know what you want and will be much less inclined to select by default the heroic and futile medical interventions that are so often based on guilt, guilt flowing from the lack of knowledge of what the person would have wanted for themselves.

On the less philosophical and more practical front, whatever the documentary source of your MDPOA, you will want to ensure that it contains an effective HIPAA release.  Learn more about the Health Insurance Portability and Accountability Act of 1996 here.    Otherwise, your appointed agent may have all the authority to make decisions for you but effectively no access to your federally protected health care information.  I was reminded of this a few years ago when I visited a client in the hospital.  I asked one of the nurses at the desk if they had a MDPOA form available and they gladly supplied one to me.  It did not contain any HIPAA release. . . .

Just because you are a family member doesn’t mean you have HIPAA authorization.  You might be familiar with the codes that many hospitals now use regarding access to information.  The best policy is to have a MDPOA with a HIPAA release.  An interesting detail on the HIPAA front. . . . .  This is a recent development that is interesting as it involves digital health information, also known as “electronic protected health information” or ePHI.  It is the first settlement on record of a breach involving a provider with fewer than 500 patients.   The hospice involved was fined as a result of the theft of a laptop containing ePHI on which it had not adequately adopted or implemented security measures to ensure confidentiality of ePHI it created, maintained and transmitted using portable devices.  You can read the entire Resolution Agreement here .   Hospice providers generally make home visits to their patients and this is a cautionary tale about the threats of portable medical care and home visits.

A couple helpful resources for Coloradoans looking for more education about MDPOAs and advance directives include pamphlets available from The Colorado Bar Association at www.cobar.org and information from the  Colorado Advance Directives Consortium at www.coloradoadvancedirectives.com

©Barbara Cashman     www.DenverElderLaw.org

 

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