Covered entities would be permitted to disclose protected health information to any person making health care decisions for an incapacitated person under State or other applicable law. This definition defers to current laws regarding health care decision-making when a patient is not a minor and is incapable of making his or her own decisions. We propose to permit information to follow such decision-making authority. It is our intent not to disturb existing practices regarding incapacitated patients.
Applicable laws vary significantly regarding the categories of persons who can make health care decisions when a patient is incapable of making them. For example, some State laws establish a hierarchy of persons who may make medical decisions for the incapacitated person (e.g., first a person with power of attorney, if not then next-of-kin, if none then close friend, etc.). In other States, health care providers may exercise professional judgment about which person would make health care decisions in the patient’s best interest. We also recognize that federal agencies have, in some cases, established rules regarding such patients. For example, the DOD has established requirements regarding military personnel who are based overseas and who have become incapable of making their own decisions.
Because laws vary regarding patients unable to make their own decisions and because these patients’ interests could be served through a variety of arrangements, we would allow health plans and health care providers to disclose information in accordance with applicable laws regarding incapacitated patients.