NRPM: Standards for Privacy of Individually Identifiable Health Information. a. Disclosures pursuant to a power of attorney.

11/03/1999

The definition of an individual would include legal representatives, to the extent permitted under State or other applicable law. We considered several issues in making this determination.

A “power of attorney” is a legal agreement through which a person formally grants authority to another person to make decisions on the person’s behalf about financial, health care, legal, and/or other matters. In granting power of attorney, a person does not give up his or her own right to make decisions regarding the health care, financial, legal, or other issues involved in the legal agreement. Rather, he or she authorizes the other person to make these decisions as well.

In some cases, an individual gives another person power of attorney over issues not directly related to health care (e.g., financial matters) while informally relying on a third person (either implicitly or through verbal agreement) to make health care decisions on his or her behalf. In such situations, the person with power of attorney could seek health information from a health plan or provider in order to complete a task related to his or her power of attorney. For example, a person with financial power of attorney may request health information from a health plan or provider in order to apply for disability benefits on the individual’s behalf.

In developing proposed rules to address these situations, we considered two options: (1) allowing health plans and health care providers to disclose health information without authorization directly to the person with power of attorney over issues not directly related to health care; and (2) prohibiting health plans or health care providers from disclosing health information without authorization directly to such persons and stating that disclosure without authorization is permitted only to persons designated formally (through power of attorney for health care) or informally as the patient’s health care decision-maker. We believe that both options have merit.

The first option recognizes that the responsibilities of persons with power of attorney often are broad, and that even when the power of attorney agreement does not relate directly to health care, the person with power of attorney at times has a legitimate need for health information in order to carry out his or her legal responsibility. The second option recognizes that when an individual is competent to make health care decisions, it is appropriate for him or her (or, if the individual wishes, for the informally designated health care decision maker) to decide whether the covered entity should disclose health information to someone with power of attorney over issues not directly related to health care.

In light of the fact that laws vary by State regarding power of attorney and that implementation of either option could be in the individual’s interest, we would allow health plans and health care providers to disclose protected health information without authorization directly to persons with power of attorney to handle any issue on the individual’s behalf, in accordance with State or other applicable laws regarding this issue.

This definition also accounts for situations in which a competent individual has granted one person power of attorney over health care issues yet, in practice, relies on another person to make health care decisions. We recognize that, by giving power of attorney for health care issues to one person and involving another person informally in making treatment decisions, the individual is, in the first instance, formally granting consent to release his or her health information and, in practice, granting consent to release medical information to the second person. Therefore, we would allow a health plan or provider, pursuant to State or other applicable law, to disclose protected health information without authorization to a person with power of attorney for the patient’s health care and to a person informally designated as the patient’s health care decision maker.