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What is a HIPAA Waiver and How Is it Changing During the Pandemic?

HIPAA (Health Insurance Portability and Accountability Act) is the national privacy law that protects patient confidential information while under medical care and treatment. Typically, a patient’s medical records and information are kept strictly confidential, and any health provider that divulges that information to third parties without permission is subject to penalties.

Specific HIPAA Waivers for Agents/Family Members
When you create an advance directive for healthcare and a power of attorney (POA), you can also waive your HIPAA privacy rights so that your agent may view your health records. Without this, medical professionals may not be able to reveal critical data or records, even if there is a valid POA for healthcare, which may limit decision making by the agent.

This waiver would be in the advance directive itself for the agent, or in a separate release for additional family members.

COVID-19 HIPAA Waivers and Guidance from the Department of Health and Services
The COVID-19 pandemic has created many exceptional regulatory changes in order to support and facilitate medical care during a national emergency. One of those is the changes to HIPAA enforcement rules to support the public interest and facilitate the flow of medical data deemed necessary to combat the virus. What this means is that patient medical records may now be accessed without authorization.

Because virus testing, reporting and tracing are seen as critical to slowing the pandemic, the Department of Health and Human Services has created a broad waiver that allows healthcare providers to share related patient information when necessary, without incurring a HIPAA violation.

Covered health agencies and providers during the pandemic may now:

• Communicate with patient family and friends without patient authorization and consent

• Disclose protected but relevant health information, without patient authorization, to health authorities and departments, foreign government agencies, as well to individuals at risk of contracting or spreading the disease.

• There remains a standard for providers to only share the “minimum necessary” amount of information for the underlying purpose.

• Provide telehealth services that may be otherwise out of compliance with HIPAA

These may seem like sweeping changes, and it is worth knowing that even if a patient requests information be kept private, the HHS will waive sanctions and penalties against the health provider if patient information is disclosed.

If you have questions about health care directives, powers of attorney and medical decisions, please contact the estate planning attorneys at Shoup Legal, A Professional Law Corporation, at 951-445-4114 or

Written by Andrea Shoup

Shoup Legal, A Professional Law Corporation can be reached at (951) 445-4114.

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