Patient’s Guide to HIPAA – Learning About HIPAA: Do Privacy Rights Survive Death?
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FAQ 7: Do Privacy Rights Survive Death?
Not in the way that they did before. Until the rule changed in 2013, a patient’s privacy rights survived death and lasted forever. The 2013 change means that privacy protections remain in place for fifty years after the date of death. However, if a State has a law that provides for additional privacy protection, that law remains in force. Further, the professional responsibilities of health care providers may require that patient records receive longer protection.
After a patient dies, that patient’s legally authorized executor or administrator, or a person who is otherwise legally authorized to act on the behalf of the deceased patient or patient’s estate, can exercise the deceased patient’s privacy rights.
It is important to know that disclosures for treatment do not require consent or authorization of the patient or the patient’s representative. (For more on authorizations, see FAQs 62-64 ). That means, for example, if information about the deceased patient is relevant to the care of the surviving spouse, the information can be disclosed by a health care provider to the health care provider for the surviving spouse.
Privacy for the dead can be especially messy when questions arise in the period after death and before anyone is formally authorized to act for the patient or the patient’s estate. For many individuals, there may be no formal legal process following death. Another 2013 change helps here. It clarifies that a covered entity may disclose a decedent’s information to family members and others who were involved in the care or payment for care of the decedent prior to death, unless doing so is inconsistent with any prior expressed preference of the individual that is known to the covered entity. This gives health care providers and health plans the discretion to do what they consider to be the right thing for families of recently deceased patients.
Roadmap: Patient’s Guide to HIPPA: Part 1: Learning About HIPAA (FAQ 7 of 65)