Privacy Rights Never Die
And Sometimes Complications Linger On
THE LAWS SURROUNDING release of a deceased patient’s records can lead
to complex and frustrating situations in the HIM department. Just who has
access rights depends on federal law, state law, and individual circumstances, illustrated by the two scenarios below.
Last summer the Office for Civil Rights proposed easing access to deceased
patient records in the notice of proposed rulemaking on the HITECH privacy
and security provisions. The changes would give providers the option of
disclosing records to a wider range of individuals. A second modification
would limit a record’s protected status to 50 years following the individual’s
death. A final rule is expected this spring.
Meanwhile, release of information staff face challenges teasing apart intersecting privacy protections that can look like red tape to the requestor.
A special thank you to Mary Thomason, MSA, RHIA, CHPS, CISSP, senior
compliance consultant at Intermountain Healthcare in Salt Lake City, for her
contributions to the following questions.
SCENARIO 1: SURVIVING SPOUSE
Q: My spouse died without creating a will and naming an executor. We had
been married for 40 years, but the medical records department has denied
my request for her records. Why can’t I get access?
For more questions and answers
on release of decedent records,
see the online exclusive,
“Accessing Deceased Patient
A: HIPAA ensures that a patient’s designated personal representative or legal executor has a right to access the patient’s medical records after death.
When a patient dies without naming either, state law determines who by
default possesses the right.
Some states allow a surviving spouse to access records automatically; others establish a chain of rights based on closest relationship
to the patient. In states that do neither, a spouse has to petition a
probate court to become the deceased’s estate executor.
SCENARIO 2: TREATMENT OF ANOTHER INDIVIDUAL
Q: My granddaughter has been diagnosed with what may be an
inherited disease. My sister may have died from the same condition, but her husband has refused to have anything to do with
us. Is there a way I could get copies of my sister’s records for
my granddaughter’s physician to review?
A: Yes. HIPAA allows for the disclosure of a decedent’s
information for the treatment of another individual. The granddaughter’s physician should contact the facility that maintains the sister’s
records and request the records relevant
to the granddaughter’s treatment. ¢