Michigan Estate Planning Blog

What is HIPAA Authorization?

The HIPAA Privacy Rule provides federal protections for personal health information held by covered entities and gives patients an array of rights concerning that information. 45 CFR §164.508 states the uses and disclosures of PHI that require authorization from a patient/plan member before information can be shared or used.

It’s important to know that some organizations are considered “partial” or “hybrid” entities. These are usually organizations whose primary function isn’t healthcare or health insurance but who have access to health information that should be protected. An educational institution that provides health services to the public is an example of a partial or hybrid entity.

HIPAA Journal’s recent article entitled “What is HIPAA Authorization?” explains that in some situations, informal consent rather than formal authorization is enough to satisfy the requirement of the HIPAA Privacy Rule. These circumstances are called “Uses and Disclosures with an Opportunity to Agree or Object” and include inclusion in facility directories and notifications to friends and family (of admission into the hospital).

If an individual cannot give their authorization, covered entities must wait until the patient or their legal representative can give their authorization. When only informal consent is required, covered entities can use their professional judgment to determine whether the use or disclosure of PHI is in the patient´s best interests.

Note that the requirements for HIPAA authorizations aren’t the same throughout the country. The HIPAA Privacy Rule is a “federal floor” for permissible uses and disclosures. However, some state laws may pre-empt HIPAA, if they have more stringent regulations.

The clause “covered entities cannot condition treatment, payment, enrollment, or eligibility for benefits” means that a covered entity can’t withhold treatment, payment, enrollment, or eligibility for benefits because a patient or plan member refuses to sign an authorization giving the covered entity additional uses for their PHI, which stands for Protected Health Information (PHI). A patient or plan member shouldn’t be put under any duress to approve the uses and disclosures of PHI, in addition to those permitted by the Privacy Rule.

The law stipulates that there has to be written authorization for every use or disclosure of PHI not required or permitted by the Privacy Rule. The retraction of HIPAA authorization also has to be written. However, HIPAA consent can be verbal, but only when consent – rather than authorization – is an option.

Reference: HIPAA Journal (October 9, 2021) “What is HIPAA Authorization?”

What are Biggest Blunders with Health Care Proxies?

A health care proxy, also called a medical power of attorney, is a legal document in which you name a person to make medical decisions, in the event that you are unable to do so for yourself.

Forbes’ recent article entitled, “Health Care Proxies - 5 Biggest Mistakes,” lists the five biggest mistakes people make on this vital document.

No 1: Failing to have one. A study found that two-thirds of us don’t have a health care proxy. If you don’t have one, your doctor may be forced to make decisions in a vacuum. As a result, your wishes may not be respected. Even worse, a court might have to step in to make decisions requiring a guardian’s appointment.

No. 2: Not speaking to those you appoint as your health care agent. This conversation doesn’t have to be complicated or lengthy. However, it’s essential to give your agent some understanding of your feelings and wishes.

No. 3: Not addressing religion If you’ve changed faith , married someone of a different faith, or have children with differing religious views, addressing this in your health care documents and your discussions with your agent is critical. Don’t skip religious considerations because you aren’t religious—that’s also an essential part of this.

No. 4: Not having copies of the health care proxy available. You can put together an envelope and write your name, address, phone number and those of your agents on it. Place a copy of your health insurance info, drug cards and health care proxy in the envelope. If you created and signed a living will and/or a POLST (Physical Order for Life-Sustaining Treatment) that you signed with your doctor, add copies of those to the envelope and a HIPAA release.

No. 5: Failing to address financial matters. Your health care agent most likely won’t have legal rights to pay medical bills, caregiver costs, or other outstanding bills. You should sign a durable power of attorney, a financial document designating a person (called an agent) to handle financial matters for you. Provide your agent with the necessary information, like bank account information.

Reference: Forbes (March 21, 2023) “Health Care Proxies - 5 Biggest Mistakes”

 

When Your Pacemaker Outlives You

Do you or a loved one live with a pacemaker or implanted defibrillator? How do you plan for end-of-life matters when one of these miraculous medical devices can keep you going and going and going long after your other essential bodily functions are otherwise shutting down? This scenario is all too common and is presenting challenges in geriatric medicine and palliative care. Recently, The New Old Age Blog took a look at this perplexing issue in an article titled “A Decision Deferred: Turning Off the Pacemaker.” Compounding the problem is the fact that standard medical directives are designed with feeding tubes and breathing support in mind. Rarely do such legal instruments address the question of a pacemaker, implanted defibrillator or other surgically implanted electronic heart monitor. These devices may extend life, and maybe not for the better, but without the directive who is empowered to direct when or even whether they should be turned off? Simply put: no one. So how many patients with these devices have built their wishes (whether on or off) into their plans and medical directives? In one survey of 150 elderly and dying Mayo clinic patients, more than half had a medical directive (and only that -- a bad statistic in itself). However, only one medical directive addressed the issue of the patient’s defibrillator.

Reference: The New York Times – The New Old Age Blog (January 29, 2014) “A Decision Deferred: Turning Off the Pacemaker”

For more infosrmation, see www.jerryreiflawyer.com

Interpreting The Uninterpretable Saginaw, MI

Advanced medical directives are a tough subject. Why? Because they mean making some tough choices. For elderly loved ones in nursing homes, however, there is a very powerful tool found in a little known directive known as the “do not hospitalize” directive. Unfortunately, it also happens to be underused and misunderstood, as pointed out in recent article in The New Old Age Blog titled simply “A Misunderstood Directive.” Advanced directives, as you may well know, are your medical choices reduced to black and white. They are intended to speak for you when you cannot. “Do not hospitalize” does not mean you do not want to receive care. In fact, you can even spell out the circumstances when you really want to go the hospital! Going to the hospital, however, is not always the best (or only) alternative across a spectrum of treatment scenarios. Hospitalization itself can be an intensely disorienting process, especially for patients with advanced dementia. Little surprise, then, that more than half of all elderly patients with dementia who are transferred from the nursing home to a hospital and back will pass away within the following 18 months. Accordingly, hospitalization can be an unfortunate step in the care continuum. In fact, hospitalization is oftentimes unnecessary. For example, most nursing home patients are sent to the hospital for respiratory infections, which is both avoidable and treatable in a nursing home setting without much trouble. On the other hand, the “do not hospitalize” directive can still provide that a broken bone or the replacement of a medical device can still trigger a hospital visit if you so stipulate. While advanced directives do some important work, according to some the “do not hospitalize” directive can help assure more peaceful late-in-life care.

Reference: The New York Times – The New Old Age Blog (November 20, 2013) “A Misunderstood Directive”

For more information, see www.jerryreiflawyer.com

Estate Planning For Your (Adult) Children Saginaw, MI

How soon is too soon? That is a common question parents must ask and answer when rearing their children to adulthood. So, when should your children have their own estate plan? MarketWatch recently addressed this issue in an article titled “Why your kids need their own estate plan.” Few 18-year-olds have their own investments, retirement and insurance, let alone the complication of spouse and children. For many, however, it is just a matter of time. Why, then, should an 18-year-old newly-minted adult need a plan for their estate? Once this birthday milestone is crossed, these “children” turned “legal adults” have new legal rights and responsibilities. In fact, the basics of estate planning are as important for them as for their parents. Consider a very common example of why young adults need a basic estate plan: healthcare. At age 17, if they have an accident, then you (their parents and legal guardians) can step in to make their medical decisions, pay their bills, and even demand grade cards from their school. At age 18, however, all of that changes. Should your adult child be incapacitated in a serious accident, then you are no more than a perfect stranger when it comes to your “legal” ability to take care of them and their business. You have hit a legal wall of expensive red tape. Fortunately, this wall is avoidable by proper planning. Bottom line: whether you are a newly-minted young adult, middle-aged, or elderly, proper estate planning is a matter of personal responsibility. Basic estate planning include a health care proxy and a financial durable power of attorney. 

Reference: MarketWatch (August 6, 2013) “Why your kids need their own estate plan”

 For more information, see www.jerryreiflawyer.com

 

 

Watch Your Language – End-Of-Life Health Care Great Lakes Bay Region, MI

Words are important. Use them carefully, especially when preparing your estate planning documents. When it comes to your health care directives, the words you choose can be a matter of life and death. A recent post over at The New Old Age Blog in “DNR by Another Name” illustrates the importance of words and their legal import. It is worth reading the original article (and perhaps even the study it discusses). Consider this: how a doctor presents a medical choice can lead a caregiver or patient in one direction or the other. For example, as taken from the title of the article, DNR, or “Do Not Resuscitate” is a medical term of art. However, it often means the same as “please allow for a natural death” depending upon the medical situation, the decisions of the patient, and even (or often exclusively) the very word choices and/or mood of the doctor themselves. As one planning your own late-in-life decisions, language is a topic worthy of your careful consideration. Additionally, if you are caring for an elderly loved one, then be sure both of you understand your loved one’s advance health care wishes and take steps to clearly articulate them in proper medical directives. Do not assume anything when it comes to the ultimate health care decisions. Make sure the patient, their appointed health care agent and the physician are all speaking the same language. Communication and documentation are essential.

Reference: The New Old Age Blog – The New York Times (May 22, 2013) “DNR by Another Name”

For more information, see www.jerryreiflawyer.com

 

Watch Your Language – End-Of-Life Health Care Saginaw, MI

Words are important. Use them carefully, especially when preparing your estate planning documents. When it comes to your health care directives, the words you choose can be a matter of life and death. A recent post over at The New Old Age Blog in “DNR by Another Name” illustrates the importance of words and their legal import. It is worth reading the original article (and perhaps even the study it discusses). Consider this: how a doctor presents a medical choice can lead a caregiver or patient in one direction or the other. For example, as taken from the title of the article, DNR, or “Do Not Resuscitate” is a medical term of art. However, it often means the same as “please allow for a natural death” depending upon the medical situation, the decisions of the patient, and even (or often exclusively) the very word choices and/or mood of the doctor themselves. As one planning your own late-in-life decisions, language is a topic worthy of your careful consideration. Additionally, if you are caring for an elderly loved one, then be sure both of you understand your loved one’s advance health care wishes and take steps to clearly articulate them in proper medical directives. Do not assume anything when it comes to the ultimate health care decisions. Make sure the patient, their appointed health care agent and the physician are all speaking the same language. Communication and documentation are essential.

Reference: The New Old Age Blog – The New York Times (May 22, 2013) “DNR by Another Name”

For more information, see www.jerryreiflawyer.com

 

Living Will Challenges

Making end of life decisions means generating and updating your living will (or advance health care directive). These documents often appear simple, but that doesn’t mean the underlying issues themselves aren’t complex. According to a recent article in The Wall Street Journal titled “A New Look at Living Wills,” unfortunately these issues are only growing increasingly complex. In its essence, the living will is a document in which you clarify your medical wishes. This allows your loved ones to implement them if you are incapacitated and unable to reflect upon them yourself in the future. Given modern medical science, doctors can keep a human body “alive” long after the “person” inside has lost what he or she would have regarded as a minimally acceptable quality of life. With each new advance in medical science, there seem to be more and more ethical and legal dilemmas. For example, the typical living will contemplates feeding tubes and respirators, but these can maintain a “persistent vegetative state” leading to shades of gray for the appointed health care agent and physician as they interpret your wishes. Moreover, the boundary between the patient being “there” or “not there” is only getting hazier as science progresses. In the end, even physicians don’t always seem to understand the power they may be wielding over life and death. Planning for your end-of-life scenarios is never easy, nor is it easy to faithfully interpret the wishes of a loved one. Nevertheless, as with all aspects of estate planning, communication with your agents, loved ones, physician and spiritual advisor holds the key to success as you define it.

Reference: The Wall Street Journal (June 8, 2012) “A New Look at Living Wills”

Suggested Key Words:

ELDER LAW

Baby Boomers are discovering that one of life’s most difficult passages is when the child becomes the caretaker for his or her parents. Tough subjects and hard choices can leave us paralyzed when we need to act quickly. Communication, early and often, is critical. The primary problem with understanding and caring for elderly loved ones lies in recognizing a deteriorating mental condition. Alzheimer’s, for one, affects one in eight persons over the age of 65. Simple dementia, on the other hand, is difficult to define, but far more Americans within that age group suffer from it. If your elderly loved ones may be susceptible to Alzheimer’s or dementia, there are certain warning signs to recognize and steps to take. While there is no consensus on exactly how to approach the problem, a recent SmartMoney article titled Talking to Mom About Alzheimer’s and Her Money provides some practical advice on understanding and discussing the problem. Simply put, there are red flags that cannot be ignored. It is necessary to address this subject with your elderly loved one and begin to take steps to provide for their interests and care. At a minimum, make sure fundamental legal documents are signed while your loved one is mentally capable of understanding. Such documents should include Advance Health Directives, a Living Will, a Financial Durable Power of Attorney and a Last Will. Here’s the bottom line: if you and your loved one wait too late to have “the conversation” and take action, then the result may be unnecessary legal fees, courts and costs.

Reference: SmartMoney (May 7, 2012) Talking to Mom About Alzheimer's and Her Money

Letting Go – End of Life Realities

Have you sat down and written your “end of life” advance health care directives? It can be a difficult chore, to be sure. Carrying out your wishes, can be a difficult chore, too, especially for the palliative care doctors and hospice medical staff who will carry out your decisions. Some of these challenges were recently featured in an article titled Amongst Doctors, Fierce Reluctance to Let Go on the New Old Age Blog at the New York Times. Indeed, we live in a culture of medicine aimed at preserving life. However, when does such “medicine” actually get in the way and prolong biological life beyond what is desired by the patient? In addition to the medical culture of preserving life, the family of the patient receiving care can be a powerful force in the mix. Many times they do not want to let go, even though their loved one is ready. Add these three ingredients together – the medical culture, the patient’s wishes and the family’s fears of loss – and you have a recipe for conflict. The palliative or hospice care doctor is well attuned to the intentions of their patient and their wishes. Unfortunately, the rest of the medical community and the patient’s own family may be less attuned. In fact, they may be hostile at best and litigious at worst. I recommend reading the original article, as you will better appreciate the unfortunate tension thrust upon so many healthcare professionals in these cases. On the other hand, the lessons gleaned may encourage you to design advance health care directives with clarity and then communicate your wishes to your primary care doctor and family members now.

Reference: The New York Times -- The New Old Age Blog (March 29, 2012) “Amongst Doctors, Fierce Reluctance to Let Go”