Who is your Personal Representative?

Personal Representatives

There has been lots of conversation the past couple of years as to WHO can act as the patients personal representative.  Is the person who the patient authorizes to receive copies of their health information their “personal representative”?  Not according to the U.S. Department of Health & Human Services.

The Health Information Technology for Economic and Clinical Health (HITECH) Act, enacted as part of the American Recovery and Reinvestment Act of 2009, was signed into law on February 17, 2009, to promote the adoption and meaningful use of health information technology. The Code of Federal Regulations is the codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government of the United States.

45 C.F.R. § 164 is the code that is often cited by various 3rd party’s requesting health information with patient authorization as the code that they are entitled to the same protections as the “Individual” because they are acting as the “Individuals Personal Representative”.  However, as we see below that was not the intention of this C.F.R.  The intention was to promote the adoption and meaningful use of health information technology to the INDIVIDUAL and the below defined Personal Representative.

Generally, a covered health care provider or health plan must allow your personal representative to inspect and receive a copy of protected health information about you that the covered health care provider or health plan maintains.A personal representative can be named several ways; state law may affect how a person becomes a personal representativeThe personal representative of a minor child is usually the child’s parent or legal guardian.  State laws may affect guardianship.

If a person can make health care decisions for you using a health care power of attorney, the person is your personal representative.

When an individual dies, the personal representative for the deceased is the executor or administrator of the deceased individual’s estate, or the person who is legally authorized by a court or by state law to act on the behalf of the deceased individual or his estate.

For further information on this topic, please refer to 45 C.F.R. § 164.502(g), and OCR’s Frequently Asked Questions.

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