The Health Insurance Portability and Accountability Act (HIPAA) is made up of stringent regulations regarding disclosure of patient medical records. It applies to all health care providers (i.e. doctor offices; hospitals, etc.) and is based on the general foundation that a patient must expressly permit disclosure of his or her private health information.
This obligation continues during the patient’s life, but also continues to some extent even after the patient becomes deceased. Upon death, the authority to obtain medical records is transferred to the patient’s “personal representative.” Federal law states that a person must be treated as a personal representative when “under applicable law an executor, administrator or other person has authority to act on behalf of a deceased individual or of the individual’s estate.” (45 CFR § 164.502(g)(4).) California law mimics the federal definition of personal representative. California defines personal representative as the executor, administrator, administrator with the will annexed, special administrator, successor personal representative, public administrator acting pursuant to Section 7660, or a person who performs substantially the same function under the law of another jurisdiction governing the person’s status. (California Probate Code § 58.)
These statutes create a situation where any person, related or unrelated, could be a patient’s personal representative if identified as such in a will. This means that if an unrelated personal representative is named in a will, no blood relatives will be able to access their loved one’s medical records absent the representative’s permission.
What if no personal representative is named? If for some reason there is no will, California has its own unique system of determining who may be permitted to request medical records absent a court order. In California, “any patient or patient’s representative shall be entitled to copies of all or any portion of the patient records that he or she has a right to inspect, upon presenting a written request to the health care provider specifying the records to be copied.” (Cal Health & Safety Code § 123110.) California’s definitions of “patient representative” can be found in California Health & Safety Code § 123105, California Probate Code § 58, and California Probate Code § 24. A patient representative may be any one of the following:
- A person who holds the Durable Power of Attorney (DPOA)
- Parent or guardian of a minor who is a patient
- The guardian or conservator of the person of an adult patient
- An agent who is required by law to obtain medical records to uphold his or her legal duty
- A beneficiary such as an heir or trust beneficiary.
In short, those seeking to obtain medical records will need to establish that they are either the personal representative or, if there is no personal representative, that they are patient representatives. In order to do this, the person seeking the records should include a copy of the death certificate showing their familial relationship or include documents establishing that he or she is an heir of the intestate decedent. If a personal representative has been named, they should contact that person and have them obtain the medical records. If all else fails, the family may still seek relief in the form of a court order but this will require an attorney and will cost significantly more.
York Law Firm is comprised of Sacramento based lawyers that handle elder abuse and wrongful death cases. If you believe your loved one has been the victim of elder abuse or neglect in a nursing home or assisted living facility, or believe your family has a wrongful death claim, please call our office so that we can investigate your case at 916-643-2200 or contact us online. We are dedicated to representing families whose elders and dependent adults who have been injured, neglected or abused.