Does HIPAA apply after death? The U.S. Department of Health and Human Services (“HHS”) issued the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPPA) regarding guidelines regarding the release of an individual’s health information and records, including a deceased person’s health information. The health information under the Privacy Rule is referred to as “protected health information.” The purpose of the Rule is to protect an individual’s right to privacy regarding their health.
It is possible to avoid having a HIPAA authorization when issuing a subpoena to the medical facility in an ongoing litigation case. However, even when issuing a subpoena, it is faster and easier to obtain medical records if the administrator or executor of the New York City estate executes a HIPAA authorization.
Under the HIPAA Privacy Rule, a New York decedent’s health information is protected for 50 years after the death of the person. Protected health information includes any information that identifies a person’s present, past or future physical or mental health, information that identifies the person such as their name, address, social security number and date of birth, the type of prescribed health care received by the person and information regarding past, present and future payments. Under the Privacy rule, information such as employment records and educational records are excluded and any other information referred to under the Family Educational Rights and Privacy Act, 20. U.S.C. §1232g.
The personal representative of a New York decedent’s estate has the right to exercise the law with regard to releasing any information about the decedent’s health and to whom. Under New York law, the personal representative is the person who has the authority under the decedent’s will (executor) or by law (administrator) and has been appointed by the court to manage the decedent’s estate.
The Privacy Rule under HIPAA allows for the release of healthcare information about the decedent to the decedent’s family members, including children, domestic partners, friends, and other persons such as healthcare providers or insurance company’s responsible for paying medical bills of the decedent, unless the decedent had specific instructions or preferences that such person or entity should not be given the information.
While the 50-year rule is in effect, the decedent’s health information has the same protections as if the decedent were still alive, although some additional exceptions pertain to deceased persons. The exceptions include releasing information about the decedent’s death to law enforcement when the person’s death is considered suspicious, the coroner’s office, medical examiners and funeral directors and to any organizations to which the donor has donated organs.
For any other uses which are not allowed under the Privacy Rule regarding a decedent’s health information, the person or entity making the request must obtain the personal representative’s written permission and consent.
Since HIPAA laws are complicated, any questions about the release of health information for a New York decedent should be discussed with a New York probate and estate attorney. If you have questions regarding a deceased loved one’s health information or you need to obtain health records regarding a New York decedent’s health records, you should speak with a New York probate and estate attorney.
If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.