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DHHS POLICIES AND PROCEDURES

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Section VIII:

Privacy and Security

Title:

Privacy Manual

Chapter:

Client Rights Policies, Personal Representatives

Current Effective Date:

11/15/15, 5/1/05

Revision History:

5/8/03, 11/15/15

Original Effective Date:

4/14/03

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Purpose

DHHS agencies shall recognize personal representatives who are authorized by the courts or by state or federal law to act on behalf of clients regarding their individually identifying health information in a manner consistent with all requirements within this policy. DHHS agencies shall treat the personal representative as the client with regard to the client's individually identifying health information relevant to the matters on which the personal representative is authorized to represent the client.

Policy

In most situations, clients are authorized to make health care decisions on their own behalf and do not require a personal representative if they are:

A personal representative is usually required to make health care decisions about adults adjudicated incompetent and persons under 18 years of age (unless they meet the exception noted above).

Personal representatives may include the following:

Disclosure of individually identifying health information to a personal representative is required (with the exception of those situations described in this policy) only if disclosure to the client is required.

Generally, a parent, guardian, or other person acting in loco parentis who has the authority to make health-related decisions on behalf of a client who is an unemancipated minor must be treated as a personal representative and may access and control health information about the minor.

The minor may control his/her health information related to a particular service and exercise the privacy rights afforded to the client in any of the following circumstances:

In the case of joint parental custody, either parent may be treated as the personal representative of the minor unless a court order dictates otherwise.

Disclosure of health information about a minor to a parent, guardian or person acting in loco parentis to avert a serious and imminent threat to the health or safety of the minor is permitted even if the minor obtained the health service without the consent of the parent, guardian, or person acting in loco parentis.

Any individual who has legal authority to act on behalf of an adult or to act on behalf of an emancipated minor who has been determined to lack the capacity to make health-related decisions, shall be treated as a personal representative as it relates to the client's health information relevant to the matters on which the personal representative is authorized to represent the client.

In the case of shared guardianship, both guardians must be treated as personal representatives and both have equal rights regarding decisions related to the client's individually identifying health information. Both guardians must signify agreement in order to execute a decision, unless a court order dictates otherwise.

An executor, administrator, or other person who has authority to act on behalf of a deceased client or of the client's estate shall be recognized as the personal representative with respect to the deceased client's individually identifying health information. The next of kin of a deceased individual can be treated as the personal representative when there is no executor or administrator.

The following persons, in priority order, can be treated as the personal representative of a deceased individual with respect to authorizing anatomical gifts/organ donations and the individually identifying information pertaining to the making of the anatomical gift/organ donation:

An agency may disclose individually identifying health information to a funeral director as necessary to carry out their duties with respect to the decedent.

An agency may decide not to treat an individual as a personal representative of the client if, in the exercise of professional judgment, the agency determines that it is not in the best interest of the client to treat the individual as the client's personal representative, and that either of the following exists:

If the client is present for, or otherwise available prior to a disclosure, the agency may disclose to a family member(s) or friend(s) individually identifying health information that is directly relevant to that person's involvement with the client's health care if the agency meets one of the following criteria:

If the client is not present for the disclosure, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the client's incapacity or an emergency circumstance, the agency may use professional judgment to determine whether the disclosure is in the best interest of the client. If so, the agency may disclose only the health information that is directly relevant to the family member/friend's involvement with the client's health care.

An agency may use professional judgment and experience with common practice to make reasonable inferences of the client's best interest in allowing a person to act on behalf of the client to pick up filled prescriptions, medical supplies, x-rays, or other similar forms of individually identifying health information.

An agency may disclose the necessary individually identifying health information to notify or assist in the notification of family members, personal representatives, or other persons responsible for a client's care with respect to a client's location, condition, or death.

Each DHHS agency shall develop and implement procedures for determining who qualifies as a personal representative. These procedures shall include the identification of persons in the agency who are responsible for confirming the legal status of each individual identified as a personal representative of a client.

The personal representative's name, address and relationship to the client shall be documented in the client's record so that all staff are aware of who is authorized to approve or deny the use and/or disclosure of the client's individually identifying health information. Documentation should also include the name of the staff member confirming the legal status of the personal representative and the date that such legal status of the personal representative was determined.

Procedures shall be developed and implemented that outline steps to be taken should the agency be unable to recognize an individual as a personal representative.



For questions or clarification on any of the information contained in this policy, please contact DHHS Privacy and Security Office. For general questions about department-wide policies and procedures, contact the DHHS Policy Coordinator.

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