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 disruptions 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 the 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 smartphone, or somewhere else that would be accessible anytime.
A study that estimates 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 to 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 smartphone 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 Contact Or Other Named Person To Receive Or 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 the 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. In addition to individuals identified in a valid HIPAA authorization, HIPAA also requires individuals that qualify as a “personal representative” of the patient to exercise the same right to use, access and disclose the patient’s protected health information as HIPAA guarantees the patient. State law varies about the circumstances under which an individual qualifies as a personal representative. Additionally, even when an individual technically might qualify as the personal representative of the patient, frontline health care workers sometimes are reluctant to grant access without a signed HIPAA authorization because of unfamiliarity with or uncertainty about whether the conditions to qualify as a personal representative are met. As a result, even where the person otherwise might qualify for access as a personal representative, it often also is a good idea for the patient to provide them with a HIPAA Authorization as well.
HIPAA authorizations are signed forms required by federal law for healthcare providers, health plans and insurers, and certain other entities to obtain before they can discuss or share healthcare information with friends, family members, employers and others in 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 at any time.
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 smartphones 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 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. When 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 smartphone to be accessible in case it is needed in the future.
- Guardianship and Declaration of Guardian
A guardianship (sometimes called a “conservatorship”) is a legal relationship created by court through a formal judical proceeding in which the court legally appoints someone (the “guardian”) to be responsible for decision-making for someone else (the “ward”) when the court determines the ward has been proven under applicable state law to be substantially unable to provide food, clothing, or shelter for himself or herself, care for the person’s own physical health, or manage the person’s own financial affairs” due to physical or mental condition.
Most people don’t think about making prior arrangements to select a guardian that would provide guardianship for themselves or a loved one until after they or their loved one becomes incapacitated. Even though guardianships over adults can only be created by court order, many people, if asked, would like to have their preferences about the person to be appointed in the event a guardianship action becomes necessary.
Because guardianships generally are very restrictive for the ward, generally must be created through a legal proceeding, and once established, require court action to modify or end, and are subject to oversight and regulation while in existence whenever possible most individuals prefer to use a durable power of attorney and other tools rather guardianship. Even when these alternative arrangements are implemented, however, the need for guardianship still could arise from various potential scenarios. Should this happen, many adults would like to have some means to communicate to the court the person or persons that the prospective ward would prefer to serve as his or her guardian. One means to do this is to document those preferences in a written declaration or another formal legal document taking into account state law prior to the onset of incapacity with the understanding that the individual named likely still will be required to prove their qualifications and otherwise satisfy the court in any subsequent guardianship proceeding that the named individual is the appropriate party to act as guardian.
In any instance where the actual or potential need for guardianship arises, all involved generally should engage an attorney licensed in the State and experienced in guardianship for a full understanding of the implications and guide and represent them in the proceedings.
- 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 directives 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.
- Ability To Talk To University or Other Educational Institutions For Person Over Age 18
Many parents mistakenly take for granted or overestimate their ability to continue to communicate with school officials and access student records and other information from their child’s school after the child attains age 18.
The Family Educational Rights and Privacy Act (FERPA) is a federal law that protects the privacy of student education records. FERPA applies to any public or private elementary, secondary, or post-secondary school as well as any state or local education agency that receives funds under an applicable program of the US Department of Education.
FERPA gives invaluable rights to access and seek amendments to educational records to parents of a child under age 18 or, after the child attains age 18 or attends a school beyond high school, the child.
Along with these rights of acceess, however, the privacy rules of FERPA generally prohibit educational institutions from disclosing “personally identifiable information in education records” of a student without the written consent of the student’s parent if the student is under age 18.
When a student reaches age 18 or attends a school beyond high school, however, legal authority to control access to the student’s records transfers from the parent to the student. The consent of the student generally is required for a parent or others to access the student’s educational records or participate in certain other educational processes. While an exception to FERPA allows (but does not require) Universities and colleges to permit some parental access by demonstrating that the student is a dependent of the parent, FERPA does not mandate that the schools allow this access. Consequently, if the parent and student want the parents to continue to be able to provide advocacy, access records or other information, or have other involvement that would involve accessing educational records or information, the student should complete the school’s process to provide the required consent and provide documentation of that action to the parent.
- Other Actions
While the steps discussed are not exhaustive, the above actions often make a huge difference in helping a patient to get proper health care and other assistance and support in the event of a medical emergency or condition that makes the patient unable to fully act on behalf of themselves. Undoubtedly 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.
While the steps outlined can help cope with a medical emergency or incapacity while the patient is living, it’s important to understand that the powers granted under these documents while the granting person is living generally end when that person dies. Other arrangements are needed to ease the handling of a different set of responsibilities and concerns that arise when a person dies. Preparing in advance for these concerns also is advisable regardless of the age or health of the person. For this reason, consulting with a qualified estate planning attorney to make arrangements for a will or other documentation that could direct and facilitate the handling of these post-death responsibilities and concerns also is recommended in addition to planning for the care needs of a patient during their lifetime. 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.
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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 processes 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 mitigate or resolve legal and operational crises large and small that arise in the course of operations or life.
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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) Tort Trial and Insurance Practice Medicine and Law Committee Chair and former Employee Benefits Committee Vice Chair; ABA International Section Life Sciences & Health Committee Chair and International Employment Law Committee Vice Chair; ABA Joint Committee on Employee Benefits (JCEB) Annual OCR Agency Meeting Scribe and a former JCEB Council Representative; ABA RPTE Employee Benefits Committee Past Group Chair and Current Welfare Benefits Committee Co-Chair; Vice President of the North Texas Health Care Compliance Professionals Association, past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group; former 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. Through her PROJECT COPE: Coalition On Patient Empowerment activities, she develops. models and leads tools, education, process and policy, and other activities to resolve and prevent problems and promote improvements for communities, businesses and other organization, patients and their families and the professionals, caregivers, families and others.
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