Patients, family members and friends often take for granted the ability of a parent, spouse, adult child or another trusted person to get information, act as a caregiver or health care advocate, help with health insurance or other care arrangements, or even make or participate in medical decision-making when a medical emergency, illness or disability prevents or makes it difficult for the patient to handle these details themselves. Unfortunately people don’t always have the information or legal rights they need to respond to an emergency. Likewise, the legal emphasis on privacy law generally doesn’t automatically allow for access or decisions unless certain arrangements are put in place.
Failing to have the appropriate documents and arrangements in place can prevent a family member or other expected caregiver from obtaining access to the patient or their healthcare information, making medical decisions, or cause other delays or disruption in care that can significantly undermine the needs of the patient. For this reason, everyone adult should have their own emergency contact list and arrangements in place, as well as consider and make appropriate arrangements for backup emergency contacts and arrangements are in place for any spouse, adult or minor children, aging or disabled family members, significant others and others individuals that depend on them to respond in an emergency.
- Pick health care representatives, guardians and other health care buddies and empower them with information and tools they would need before a crisis
Because medical emergencies can happen anytime unexpectedly, every adult and child should have a list of emergency contacts and give those people the information and tools to help when needed.
Adults should keep the names and contact information for these emergency contacts in their wallet, on their emergency profile on their smart phone, or somewhere else that would be accessible anytime.
A recent study estimating more than 140,000 children lost their parent or primary caregiver to COVID-19 between April 1, 2020 through June 30, 2021 highlights the importance of adults also making advance guardianship and other arrangements for their minor children and aging or disabled family members and keep an emergency list of contacts of those dependents and others dependent on that adult whose situation could be adversely affected by an emergency impacting that dependent person so arrangements are in place to care for the dependent person if the responsible adult becomes incapacitated or otherwise unavailable.
Adult children and other adults need their own arrangements. Parents of young adult children (over age 18 generally are considered adults. This means parents lose their ability to access information and make decisions they had before their child turned 18. This means parents and their adult children leaving for college or otherwise can’t count on parents handling things in response to a medical situation unless proper steps are taken. Consequently, adult children need to make their own arrangements to allow parents or other trusted people act if a medical situation arises.
Of course, merely identifying and listing your emergency contacts, medical information and allergies is just the first step. Equally important is to inform the people designated and give them the documents and information needed to respond quickly and effectively if the need arises.
Once these emergency contacts are identified, place their name and contact information on a brightly colored card behind your driver’s license, on your iPhone or other smart phone emergency contact information profile, and enter it on work, doctor’s office, gym and other profiles requesting emergency contact information as needed.
While doing this, it’s also a good idea to prepare a list of all vitamins and medications and significant physical, cognitive, or mental conditions that could impact the patient’s emergency or other care needs. A list of the names and contact information for the patient’s primary care and other treating physicians also can be very helpful to include in these profiles. Give these to emergency contacts and update it as needed to help prepare them to respond to an emergency.
- HIPAA Authorizations Allow Emergency Contacts To Access Personal Health Care Information
Most people give inadequate thought and preparation to empower emergency contacts to respond in the case of a health care emergency.
The Health Insurance Portability & Accountability Act (“HIPAA”) and similar state laws generally prohibit health care providers and health plans from discussing personal health care information of one person with another individual without HIPAA authorization except in very specific circumstances. A patient that expects or wants a friend or family member to be informed about the patient’s health or health insurance information generally should sign a HIPAA authorization to give health care providers or health plans permission to share that information.
HIPAA authorizations are signed forms required by federal law for healthcare providers, heath plans and insurers, and certain other entities to obtain before they can discuss or share healthcare information with friends, family members, employers and others under most situations. In the case of a medical emergency, healthcare providers or health insurance and health plans generally are restricted to sharing very limited information about a patient with an individual unless that individual has documentation to prove they are the personal representative of the patient or they have a HIPAA authorization signed by the patient that authorizes the disclosure.
Healthcare providers generally are required to offer a notice of privacy practices along with the opportunity to sign a HIPAA authorization at the beginning of the relationship and at least once a year as long as the relationship continues. Health plans typically provide a copy of these documents when a person first becomes covered under the plan. Healthcare providers and health benefit plans or insurers also generally will ask for these authorizations to be signed before they will grant a request for medical information from an employer, family member, friend or other third-party.
Patients generally can decide when, how much, and the circumstances under which they want to allow access to their medical information and records to a third-party such as a family member, employer, or others.
Most people will want to give the broadest authorization to emergency contacts that they plan to rely upon to take care of them if the patient cannot manage their own affairs or need other assistance but also may sign other HIPAA authorizations for others that allow much more limited access.
Patients can vary the amount, circumstances and duration that a HIPAA authorization allows a person to obtain their health information by completing separate authorizations specifying the parameters and circumstances that it allows the listed person(s) to get the information. Patients also can easily change or revoke these authorizations anytime.
Ideally, a patient will complete and give individuals who are their emergency contact a copy of the signed HIPAA authorization IN advance. To be effective, these documents must include not only the page with the patient signatures but the disclosures that go with them.
Since the need for these documents can rise unexpectedly, in addition to giving a paper copy of these documents to the persons who will be expected to use them, many patients will benefit if the people that hold their authorization also will keep a PDF or photographic copy of these documents on their smart phones and in their computers so they could be readily available should they need to access them on an emergency basis.
- Durable Medical Power Of Attorney Gives Caregiver Power To Make Decisions When Patient Incapacitated
Most healthy adults overlook the importance of empowering a trusted family member, friend or other individual the adult trusts to act on the individual’s behalf if he or she becomes incapacitated. Since incapacity can happen unexpectedly, every adult ideally should have a durable medical power of attorney appointing someone the patient trusts to make medical decisions for the patient if the patient temporarily or permanently becomes unable to make medical decisions or to communicate their decisions to the healthcare provider.
The HIPAA authorization discussed in the preceding section empowers the person named to obtain a patient’s medical information but does not give that person any power to make medical decisions for the patient. Where a patient wants a trusted person to act on their behalf when the patient cannot act for themselves, they generally need to sign a durable medical power of attorney naming the person they trust to act for them.
A durable power of attorney for medical decisions is a legal document that delegates authority to a person named in the document to make medical decisions in the event physical or mental incapacity makes the patient unable to make or communicate their own health care decisions.
These documents have to be written and signed in accordance with specific state law requirements to be reliably effective when you need them. A medical durable power of attorney can be indispensable for a patient temporarily or permanently unable to make or communicate their own medical choices because it allows another person trusted by the patient and named in advance to act on their behalf. A durable medical power of attorney generally is only effective it properly drafted and only for the period the patient is unable to make and communicate his or her own preferences due to incapacity.
Obviously, it is very important that the person selected to hold this power be carefully selected. In general, most people also want to consider naming a contingent person in the document to serve and exercise the powers granted in the event that the originally named person dies or is unavailable.
When preparing a durable medical power of attorney, use care to ensure the durable medical power of attorney is properly written and signed to meet relevant legal requirements and then give a copy of that document to the person appointed to present when and if needed.
Also ideally the patient should give a copy of the durable power of attorney and discuss the patient’s wishes in the event of certain medical eventualities advance of becoming ill so that the person empowered by the document can make the best choice as possible.
Like the HIPAA authorization, a durable power of attorney needs to be available to the person who holds it in the event it is needed. For this reason, once a patient has signed these documents a copy should be provided to the individual who will hold that power. Optimally that individual will not only keep a paper copy handy but also an electronic or photographic copy available on their computer and smart phone to be accessible in case it is needed in the future.
- Directive To Doctors/Living Will
Patients that are concerned about extraordinary medical measures being taken to prolong their life in the event of brain death or other serious permanent loss of capacity should consider arranging for a qualified lawyer to prepare a directive to doctors providing instructions for what they want to happen to them in this circumstance.
These directives are often referred to as “do not resuscitate” orders, “living wills“ or by other names. The name used to refer to these documents and the contents and formalities for signature to be effective often varies from state to state. Patients that want their instructions to be legally binding and followed should consult with a qualified attorney to arrange for a document to be carefully crafted and signed to meet the patient’s wishes.
Patients also should talk specifically about the circumstances and type of care they want with their trusted person.
Pursuant to federal law most hospitals and many other healthcare providers will prepare and present an opportunity to sign a do not resuscitate order when patients enter the hospital or under certain other circumstances. Patients who have prepared and signed a directive to doctors with the assistance of counsel should not sign these documents presented by healthcare providers without consulting with their attorney as they may override the more specific instructions to the patient made. Furthermore, as the documents presented by healthcare institutions typically contain relatively unqualified directives not to resuscitate without tailoring to the particular patient’s needs, signing these documents without careful review could result in an unanticipated denial of care resulting in the patient’s untimely death when a simple intervention might change the outcome. Consequently, patients who do not have their own preprepared directive to doctors when they enter a healthcare facility should not sign “do not necessitate” or other directives presented by the healthcare provider without carefully reviewing and editing it to follow the patient’s specific wishes, to avoid these documents causing an unanticipated denial of care resulting in the patient’s untimely death.
When signing these documents, patients should check to see if their states have special requirements about having original documentation or specific forms of signature. Often times original copies with original signatures may be required. In other cases, there may be a requirement that there be a notary or other specific witnessing for the documents to be used. Make sure you carefully follow these rules to ensure that the documents presented will work when you need them.
Once these documents are prepared and signed, patient should give a copy to the person named in the document as well as to their healthcare providers.
- Health History And Health Coverage Information
Another important step that a patient should take in advance of suffering an illness or injury is sharing information about their healthcare history and their health insurance coverage with the person who will hold their durable medical power of attorney and other emergency contacts to help ensure that emergency personnel and healthcare providers have access to vital healthcare information to prevent adverse drug interactions or provide necessary medical interventions to deal with those situations.
Providing your emergency contacts with your health insurance card and access to your health insurance coverage information can help ensure that the healthcare providers have the information they need to submit bills more efficiently. This can prevent many headaches for the patient as they recover or others who have to deal with medical expenses following a serious illness or injury.
- Other Actions
While not exhaustive, the previously discussed steps can make a huge difference in the helping a patent to get proper health care and helping to advocate for the patient throughout the course of care in the event of an incapacity due to COVID or another medical emergency or condition that makes the patient unable to fully act on behalf of themselves.
Undoubtably there are various other requirements or additional steps that also could be taken based on the needs and desires of the patient. However these steps can make big differences in helping patients get their needs met in the event of a medical incapacity or emergency.
Along with planning for the care needs of a patient during their lifetime, most people also should consider consulting with an estate planning attorney to make arrangements for a will or other documentation to help facilitate the wind up of their affairs in case they die due to age or in medical situation.
Patients and their family members are encouraged to contact an experienced estate planning and trust law attorney to guide them about these and other concerns.
We hope this information is helpful to you or someone you know. Want to learn about more developments or know other resources? Hear about or participate in discussions of other health care challenges developments and help empower others by sharing information, resources and other ideas about health, disability and aging challenges, needs, resources and victories on Facebook @projectcopecoation!
About The Author
Recognized by LexisNexis® Martindale-Hubbell® as a “AV-Preeminent” (Top 1%/ the highest) and “Top Rated Lawyer,” with special recognition as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Health Care,” “Labor & Employment,” “Tax: ERISA & Employee Benefits” and “Business and Commercial Law” by D Magazine, the author of this update is widely known for her work in health care, health and other benefit, human resources and other workforce, health, savings and retirement, safety and other legal, operations policy and regulatory affairs and other concerns as a practicing attorney and management consultant, thought leader, author, public policy advocate and lecturer.
For more than 35 years, Ms. Stamer’s legal, management and governmental affairs work has focused on helping health industry, health benefit and other organizations and their management use the law, performance and risk management tools and process to manage people, performance, quality, compliance, operations and risk. Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer supports these organizations and their leaders on both a real-time, “on demand” basis as well as outsourced operations or special counsel on an interim, special project, or ongoing basis with strategic planning and product and services development and innovation; workforce and operations management, crisis preparedness and response as well as to prevent, stabilize and cleanup legal and operational crises large and small that arise in the course of operations.
Past Chair of the ABA Managed Care & Insurance Interest Group and, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also has extensive health care reimbursement and insurance experience advising and defending health care providers, payers, and others about Medicare, Medicaid, Medicare and Medicaid Advantage, Tri-Care, self-insured group, association, individual and group and other health benefit programs and coverages including but not limited to advising public and private payers about coverage and program design and documentation, advising and defending providers, payers and systems and billing services entities about systems and process design, audits, and other processes; provider credentialing, and contracting; providers and payer billing, reimbursement, claims audits, denials and appeals, coverage coordination, reporting, direct contracting, False Claims Act, Medicare & Medicaid, ERISA, state Prompt Pay, out-of-network and other nonpar insured, and other health care claims, prepayment, post-payment and other coverage, claims denials, appeals, billing and fraud investigations and actions and other reimbursement and payment related investigation, enforcement, litigation and actions. Heavily involved in health care and health information technology, data and related process and systems development, policy and operations innovation and a Scribe for ABA JCEB annual agency meeting with OCR for many years who has authored numerous highly-regarded works and training programs on HIPAA and other data security, privacy and use, Ms. Stamer also is widely recognized for her extensive work and leadership on leading edge health care and benefit policy and operational issues including meaningful use and EMR, billing and reimbursement, quality measurement and reimbursement, HIPAA, FACTA, PCI, trade secret, physician and other medical confidentiality and privacy, federal and state data security and data breach and other information privacy and data security rules and many other concerns.
A former lead consultant to the Government of Bolivia on its Pension Privatization Project with extensive domestic and international public policy and governmental and regulatory affairs experience, Ms. Stamer also is widely recognized for regulatory and policy work, advocacy and outreach on healthcare, education, aging, disability, savings and retirement, workforce, ethics, and other policies. Throughout her adult life and career, Ms. Stamer has provided thought leadership; policy and program design, statutory and regulatory development design and analysis; drafted legislation, proposed regulations and other guidance, position statements and briefs, comments and other critical policy documents; advised, assisted and represented health care providers, health plans and insurers, employers, professional. and trade associations, community and government leaders and others on health care, health, pension and retirement, workers’ compensation, Social Security and other benefit, insurance and financial services, tax, workforce, aging and disability, immigration, privacy and data security and a host of other international and domestic federal, state and local public policy and regulatory reforms through her involvement and participation in numerous client engagements, her work as founder and Executive Director of the Coalition for Responsible Health Policy and its PROJECT COPE: the Coalition on Patient Empowerment and a host of other involvements and activities.
The American Bar Association (ABA) International Section Life Sciences Committee Vice Chair, a Scribe for the ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting, former Vice President of the North Texas Health Care Compliance Professionals Association, past Chair of the ABA Health Law Section Managed Care & Insurance Section, past ABA JCEB Council Representative, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, and past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has worked closely with a diverse range of health care providers, employers, unions, associations, employer and union sponsored health and disability plans and their administrators and insurers, managed care, insurance and other health care payers, quality assurance, credentialing, technical, research, public and private social and community organizations, foreign and US federal, state and local agencies and others on health care, aging, disability, savings and other process improvement, change management; regulatory affairs and public policy and other concerns.
A Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation, Ms. Stamer also shares her thought leadership, experience and advocacy on these and other related concerns by her service in the leadership of the Solutions Law Press, Inc. Coalition for Responsible Health Policy, its PROJECT COPE: Coalition on Patient Empowerment, and a broad range of other professional and civic organizations including as the North Texas Healthcare Compliance Association Executive Director and Vice President; Alliance for Healthcare Excellence founding Board Member and past President; National Kidney Foundation of North Texas former Board Member and Board Compliance Committee Chair; The Richardson Development Center for Children (now Warren Center For Children) early childhood development intervention agency former Board President; Congressional Stem Cell Advisory Committee Member; National Physicians Council For Health Care Policy Advisor; ABA Tort & Insurance Practice Section Medicine and Law Committee Chair Elect and Employee Benefits Committee past Vice-Chair; ABA International Section Life Sciences Committee Chair; ABA Health Law Section Managed Care & Insurance Interest Group past Chair; ABA RPTE Section Employee Benefits past Group Chair; current and past Welfare Plan Committee Chair; and Defined Contribution Plan, Plan Termination Committee and Fiduciary Responsibility Committee past Chair; ABA Joint Committee on Employee Benefits former past Representative and Marketing Committee Chair; ABA Health Law Coordinating Council RPTE and International Section Representative, Gulf Coast TEGE Council TE Division former Coordinator and a Vice-Chair; Dallas Bar Association Employee Benefits & Executive Compensation Committee past Chair, Southwest Benefits Association Board member and Continuing Education Committee Chair; and others.
Recognized for her pragmatic and insightful thoughtleadership, Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns for the American Bar Association, ALI-ABA, American Health Lawyers, Society of Human Resources Professionals, the Southwest Benefits Association, the Society of Employee Benefits Administrators, the American Law Institute, Lexis-Nexis, Atlantic Information Services, The Bureau of National Affairs (BNA), InsuranceThoughtLeaders.com, Benefits Magazine, Employee Benefit News, Texas CEO Magazine, HealthLeaders, the HCCA, ISSA, HIMSS, Modern Healthcare, Managed Healthcare, Institute of Internal Auditors, Society of CPAs, Business Insurance, Employee Benefits News, World At Work, Benefits Magazine, the Wall Street Journal, the Dallas Morning News, the Dallas Business Journal, the Houston Business Journal, and many other symposia and publications. She also has served as an Editorial Advisory Board Member for human resources, employee benefit and other management focused publications of BNA, HR.com, Employee Benefit News, Insurance Thought Leadership and many other prominent publications and speaks and conducts training for a broad range of professional organizations. Health Care Compliance Association, Atlantic Information Service, and others.
For more information about Ms. Stamer or her services, credentials, publications, involvements or presentations, see here or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
About Solutions Law Press, Inc.™
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©2023 Cynthia Marcotte Stamer. Non-exclusive right to republish granted to Solutions Law Press, Inc.™ All other rights reserved. For information about republication or other use, please contact Ms. Stamer here.
PROJECT COPE: COALITION ON PATIENT EMPOWERMENT 