questions & answers

Question: My 91 year-old father has recently been admitted to an Altzheimer's long term care facility. My stepsister, his ex-wife and a fiduciary have healthcare Power of Attorney. The fiduciary is private and only acts as a substitute. I have no access to his medical records. I live in CA & cannot take charge of his care. He's medicated and sleepy all the time. How can I get access to his medical records without becoming responsible for his care from another state? My stepsister is not cooperative and has even threatened my visits with my father. The fiduciary interceded on my behalf. His ex-wife has taken all his assets.

Answer: Federal law under the Health Insurance Portability and Accountability Act (HIPAA) governs the disclosure of a patient's confidential medical records and information. Generally, when a patient voluntarily gives consent to the disclosure, relatives can access that patient's medical records and information. However, when the patient is incapacitated and legally unable to voluntarily give consent to a disclosure of medical records and information, the situation becomes more complicated. A person with "agency" powers over a patient, such as a person with durable power of attorney, may be able to act on the patient's behalf to disclose medical records and information.
See A.R.S. § 14-5501(A)(1).
A person with a "fiduciary" duty over a patient is a person that legally must put the patient's interests above their own. This may (or may not) include giving relatives access to the patient's medical records and information. The laws of agency, fiduciary duties, and HIPAA are complicated. See the following article from the U.S. Department of Health and Human Services: http://www.hhs.gov/ocr/privacy/hipaa/understanding/special/mhguidance.html and consult an experienced attorney for fact-specific information and advice.