The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that establishes privacy standards for patients' medical records and other personal health information. HIPAA generally does not give family members the right to access patient records, even if they are paying for healthcare premiums, unless the patient is a minor, a spouse, or has designated them as a personal representative. However, there are exceptions and circumstances in which HIPAA allows patient data to be shared with family members or other individuals. For example, in emergency situations, healthcare professionals may use their judgement to disclose information to relevant individuals.
Characteristics | Values |
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Who does HIPAA apply to? | HIPAA applies to "covered entities", including health providers, health insurers, and other professionals who handle individuals' medical information. Private citizens and family caregivers are not "covered" by HIPAA. |
What information is protected by HIPAA? | All "individually identifiable health information" held or transmitted by a covered entity, in any form (electronic, oral, or written). This includes information about an individual's past, present, or future physical or mental health, healthcare provided, and payments. |
When can a family member access an individual's health information under HIPAA? | If the individual is a minor, a spouse, or has designated a family member as their personal representative. In some cases, family members may be able to access an individual's health information if the individual provides written authorization or if the individual is incapacitated or in an emergency situation and a healthcare professional determines that it is in the best interest of the patient. |
What are the penalties for violating HIPAA? | Civil and criminal penalties can be imposed on violators. |
What You'll Learn
Family members' rights to access patient records
The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that was passed in 1996. It requires the Department of Health and Human Services (HHS) to create a federal "Privacy Rule" for health providers and health plans, outlining how these entities must protect the privacy of an individual's medical information.
HIPAA generally does not give family members the right to access patient records, even if that family member is paying for healthcare premiums, unless the patient is a minor, a spouse, or has designated them as a personal representative. A personal representative is someone authorized under written permission from the individual, state, or other applicable law to act on behalf of the individual in making healthcare-related decisions and accessing their protected health information (PHI). Whether spouses, same-sex spouses, and family members can act as an individual's personal representative is governed by state laws, which vary.
In cases where the patient is not a minor or a spouse of the family member, the family member must be designated as a personal representative to access their records. An individual can direct a covered entity to transmit a copy of their PHI to a designated person, and the covered entity must comply with the request, except in limited circumstances. The request must be in writing, signed by the individual, and clearly identify the designated person and where to send the PHI.
Outside of the HIPAA right of access, other provisions in the Privacy Rule address disclosures to family members. A covered entity is permitted to share information with a family member or other persons involved in an individual's care or payment for care as long as the individual does not object. If the individual is incapacitated or in an emergency, a healthcare professional may use their professional judgment to disclose information if they believe it is in the best interest of the patient. If the individual is deceased, a covered entity may disclose information unless doing so contradicts any prior expressed preference of the individual.
In summary, while HIPAA generally does not give family members the right to access patient records, there are exceptions and circumstances where patient data can be shared with family members. These include cases where the patient is a minor, a spouse, or has designated a family member as their personal representative, as well as situations where the patient's care or payment for care is involved, and when it is deemed to be in the best interest of the patient.
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Parental rights to data concerning children
HIPAA laws generally do not give family members the right to access patient records, unless the patient is a minor, a spouse, or has designated them as a personal representative. In the case of minors, a parent will most likely have access to their child's medical data as their personal representative. However, this right is not absolute and there are exceptions where a parent may not be granted access to their child's medical records.
The HIPAA Privacy Rule allows parents to have access to their minor child's medical records as their personal representative when such access is not inconsistent with state or other laws. There are three situations when a parent would not be considered the minor's personal representative under the Privacy Rule:
- When the minor consents to care and the consent of the parent is not required under state or other applicable law.
- When the minor obtains care at the direction of a court or a person appointed by the court.
- When the parent agrees that the minor and the healthcare provider may have a confidential relationship.
Even in these exceptional situations, the parent may still have access to the minor's medical records if state or other applicable law requires or permits such access. Parental access would only be denied if state or other law prohibits it. If state or other applicable law does not address a parent's right of access in these cases, the healthcare provider may use their professional judgment to grant or deny access, to the extent allowed by law.
Additionally, healthcare providers may choose not to treat a parent as a personal representative if they reasonably believe that the child has been or may be subjected to domestic violence, abuse, or neglect, or if they believe that providing the parent with access could endanger the child.
It is important to note that different states have different laws regarding parental rights to their children's data, and these laws can vary significantly. For example, in Oregon and many other states, the individual has the right to designate a personal representative of their choosing, who may or may not be a family member. In the case of foster children, the state may assign a personal representative in lieu of the parent, and in such cases, the parent would not have access to the child's data.
Furthermore, mental health professionals are required to maintain confidentiality with their patients, including minor patients. However, they will communicate with underage patients and their parents about the limits of confidentiality when the safety of the patient or another person is at risk. Mental health professionals are mandated reporters and are required to notify parents or social services if there is suspected, perceived, or potential harm to a minor, a disabled person, or an elderly person.
In summary, while parents generally have the right to access their minor child's medical data under HIPAA, there are exceptions to this rule, and the specific laws and regulations can vary depending on the state. Healthcare providers must use their professional judgment and follow applicable laws and regulations when determining whether to grant parental access to a minor's medical records.
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Spousal rights
In general, HIPAA does not give family members the right to access patient records, unless the patient is a spouse, a minor, or has designated them as a personal representative.
According to the HHS website, an individual's personal representative is someone authorized under written permission from the individual, State, or other applicable law to act on behalf of the individual in making health care-related decisions and having access to their protected health information (PHI). The HIPAA Privacy Rule requires covered entities to treat a personal representative as they would the patient themselves, particularly around uses and disclosures of the patient's PHI.
Whether or not spouses, same-sex spouses, and family members can act as an individual's personal representative is governed by state laws, which can vary from state to state. The HIPAA Privacy Rule looks to these state laws to determine if loved ones have the authority to act on behalf of the individual as a personal representative. For example, in Oregon and many other states, the individual has the right to designate a personal representative of their choosing. That person can be a family member, but it doesn't have to be; an individual may opt to choose anyone they would like to have access to their data.
HIPAA defines a spouse as any individual in a lawful marriage, without regard to the sex of the individuals. This includes individuals who are legally married, regardless of whether the marriage is between individuals of the opposite sex or the same sex.
Similarly to parents of minors, a spouse will most likely have access to their spouse's medical data under the HIPAA Privacy Rule. One can ensure access by providing written permission to their healthcare provider, designating their spouse as their personal representative. However, oftentimes, a spouse will be informed of patient data with verbal permission by the patient or professional judgment by the healthcare provider. According to the HHS website, under the Privacy Rule, "if a state provides legally married spouses with healthcare decision-making authority on behalf of one another, a covered entity is required to recognize the lawful spouse of an individual as the individual's personal representative without regard to the sex of the spouses."
Covered entities can share an individual's PHI with family members or spouses under certain circumstances. For instance, a covered entity may disclose PHI to a family member or spouse who is involved in the individual's care for purposes such as assisting in the individual's treatment or arranging for their care. Notifications about an individual's location, general condition, or death may also be shared with family members or spouses.
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Healthcare-related circumstances
In healthcare settings, such as clinics or emergency rooms, healthcare professionals may use their judgement to disclose patient information to relevant individuals. This is permitted under the HIPAA Privacy Rule, which allows Covered Entities to share Protected Health Information (PHI) with family members, friends, or other persons in specific circumstances:
- If the patient is present and consents to the disclosure or does not object.
- If, based on professional judgement, the healthcare provider can reasonably infer that the patient does not object to the disclosure.
- If the patient is incapacitated or in an emergency, and the healthcare provider believes that disclosure is in the patient's best interest.
- If the patient has designated a personal representative to act on their behalf and make healthcare-related decisions, the representative has access to the patient's PHI. This could be a spouse, family member, or any other individual chosen by the patient.
- If the patient is a minor, their parent or guardian will likely have access to their medical data, unless the parent has been deemed unfit or the child is in foster care.
- If the patient is deceased, a covered entity may disclose their health information unless it is inconsistent with the patient's prior expressed preference.
In summary, while HIPAA generally does not give family members the right to access patient records without authorisation, there are exceptions, particularly in healthcare settings, where professionals may disclose information to family members if it is deemed to be in the patient's best interest or with the patient's consent.
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HIPAA release
In general, HIPAA does not give family members the right to access patient records, even if that family member is paying for healthcare premiums, unless the patient is a minor, a spouse, or has designated them as a personal representative. However, there are several exceptions and circumstances in which HIPAA allows patient data to be shared with family members or other individuals.
According to the HHS website, an individual’s personal representative is someone authorized under written permission from the individual, State, or other applicable law to act on behalf of the individual in making health care-related decisions and accessing PHI. The HIPAA Privacy Rule requires covered entities to treat a personal representative as they would the patient themselves, particularly regarding the use and disclosure of the patient’s protected health information.
Whether or not spouses, same-sex spouses, and family members can act as an individual’s personal representative is governed by state laws, which can vary from state to state. The HIPAA Privacy Rule looks to these state laws to determine if loved ones have the authority to act on behalf of the individual as a personal representative. For example, in Oregon (and many other states), the individual has the right to designate a personal representative of their choosing. That person can be a family member, but it is not a requirement; an individual may opt to choose anyone they would like to have access to their data.
HIPAA and Family Members: Parental Rights to Data Concerning Children
Different state laws give parents different rights concerning their children’s data. If a child is a minor, a parent will most likely have access to their child’s medical data. However, a parent paying for healthcare for their child who is not a minor does not automatically have the right to this information. If a child is in the foster-care system, the state may assign the child a personal representative instead of the parent. In this case, a parent would not have access to their children’s data. Additionally, if a mental health or medical professional has a reasonable belief, using professional judgment, that a child has been or may be subjected to domestic violence, abuse, or neglect, they may choose not to treat a parent as a personal representative to avoid endangering the child.
HIPAA and Family Members: Spousal Rights
Similarly to parents of minors, a spouse will likely have access to their spouse’s medical data under the HIPAA Privacy Rule. One can ensure access by providing written permission to their healthcare provider, designating their spouse as their personal representative, but oftentimes a spouse will be informed of patient data with verbal permission by the patient or professional judgment by the healthcare provider. According to the HHS website, under the Privacy Rule, “if a state provides legally married spouses with health care decision-making authority on behalf of one another, a covered entity is required to recognize the lawful spouse of an individual as the individual’s personal representative without regard to the sex of the spouses.”
Healthcare-Related Circumstances
In cases where healthcare is being actively administered (such as in a healthcare clinic) or in an emergency situation, a healthcare professional may use their professional judgment to disclose information to relevant individuals. According to the HHS, the HIPAA Privacy Rule allows Covered Entities to share PHI with family members, friends, or other persons in the following circumstances:
- If the patient is present and agrees to the disclosure or does not object.
- If, based on professional judgment, the Covered Entity can reasonably infer that the patient does not object.
- If the information is relevant to the involvement of an individual in the patient’s care or payment for health care.
- If the patient is incapacitated or in an emergency circumstance and the Covered Entity believes it would be in the best interest of the patient.
For example, if a patient brings a friend to their wisdom tooth removal appointment, and this friend will help them recover from the procedure, the healthcare provider can reasonably infer that the patient does not object to their friend having information about the tooth extraction or anesthetic that the patient received.
In general, HIPAA does not give family members the right to access patient records, unless the patient is a minor, a spouse, or has designated them as a personal representative. In cases where healthcare is being actively administered generally, or in an emergency situation, a healthcare professional may use their professional judgment to disclose information to relevant individuals.
Different state laws give parents different rights with respect to their children’s data. If a child is a minor, a parent will most likely have access to their child’s medical data.
A HIPAA release form is a document that – when signed – allows healthcare providers to share a patient’s protected health information (PHI) with specified individuals or organizations, according to the details stipulated in the form. The details usually consist of what PHI is being shared, why it is being shared, who it is being shared with, and – if applicable – for how long it is being shared.
A HIPAA release form is necessary whenever PHI is used or disclosed for a purpose not specifically required or permitted by the Privacy Rule. Healthcare providers may also use a HIPAA release form to document patient consent for disclosure of PHI in which the patient should be given the opportunity to agree or object to the disclosure.
The patient should sign the HIPAA release form unless they are a minor or incapable of signing the form. In cases where the patient is a minor or incapable of signing the HIPAA release form, a parent, guardian, or other person acting in loco parentis can sign the form on behalf of a minor, while a personal representative can sign the form in other circumstances.
A HIPAA-compliant HIPAA release form must, at the very least, contain the following information:
- A description of the information that will be used/disclosed
- The purpose for which the information will be disclosed
- The name of the person or entity to whom the information will be disclosed
- An expiration date or expiration event when consent to use/disclose the information is withdrawn. For example, an expiration event may be when a research study is completed
- A signature and date that the authorization is signed by an individual or an individual’s representative. If a representative is signing the form, the relationship with the patient must be detailed along with a description of the representative’s authority to act on behalf of the patient
The HIPAA release form must also include statements that advise the individual of:
- Their right to revoke their authorization
- Any exceptions to the individual’s right to revoke the authorization
- Details of how the authorization can be revoked
- That the covered entity may not condition treatment, payment, enrollment, or eligibility for benefits on whether the individual signs the authorization
- That there is a potential for information disclosed under the terms of the authorization to be re-disclosed by the recipient and no longer protected by 45 CFR Part 164, Subpart E
A HIPAA release form must be written in plain language, and a copy of the signed form should be provided to the patient.
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Frequently asked questions
Yes, a family member can violate HIPAA. A notable example is a nurse who was fired for checking in on her family members' medical files after they visited the cardiology department where she worked.
In general, no. However, family members can access patient records if the patient is a minor, a spouse, or has designated them as a personal representative.
A HIPAA release is a written authorization that allows health providers and other covered entities to disclose protected health information.
Yes, HIPAA permits this type of disclosure. However, doctors are not required to ask family caregivers for proof of identity before disclosing information.