HIPAA

records to family member of deceased patient

  • 1.  records to family member of deceased patient

    Posted 06-12-2020 09:07 AM
    We have received a call from a deceased patient's family member requesting medical records.  The family member (mother, but patient is not a child) is not listed in the chart as someone who can receive information.  We told her that we were unable to release records to her and she has asked if an attorney can get the records.  Should we require a court order?

    Thank you,

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    Penny Etter
    Corporate Compliance Officer
    Community Health of East Tennessee
    LaFollette,TN
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  • 2.  RE: records to family member of deceased patient

    Posted 06-12-2020 09:15 AM
    Whoever is in  charge of the estate can request the records.​

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    Ann Dunham
    MBA, SPHR, CHC, CHRC
    Compliance Officer
    Hannibal Regional Healthcare System
    Hannibal, MO
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  • 3.  RE: records to family member of deceased patient

    Posted 06-12-2020 09:49 AM
    Who can access records postmortem is very state-specific.
    Executor of the estate holds the power but some state laws also provide for certain family members to do so as well.  Consult counsel.

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    Scott Intner
    Chief Compliance Officer
    GW Medical Faculty Associates
    Washington,DC
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  • 4.  RE: records to family member of deceased patient

    Posted 06-12-2020 12:13 PM
    I am not a lawyer, this is not legal advice, and quite frankly this is an area of the law that completely mystifies me so take my answer with a large grain of salt. My only experience in this is handling my father's and father-in-law's estates.  

    You are probably already aware that HIPAA rights to privacy and security of PHI extend for 50 years after death but I thought it was worth mentioning just in case.

    At some point your State probate court will assign a personal representative for the decedent's estate. That person is a personal representative under HIPAA and has all the rights the patient had including the right to access. 

    Be aware: the  right to access is currently an area of special enforcement for OCR. They are fast tracking such complaints and while the settlement agreements I have seen have been reasonable they have not been, shall we say, easy.  As probate law varies from State to state I would highly recommend taking this issue up with general council for reliable legal advice. 

    I hope this is useful 
    -Alex-
    Alexander I Slosman, MHA, CHC, CHPC



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  • 5.  RE: records to family member of deceased patient

    Posted 06-14-2020 11:12 AM
    Penny,
    We had a similar situation where a family member not on our family member list asked for information on a deceased patient.  I also didn't release the information, but suggested that get a family member that is on the list to request the information or go through the court system. On the other hand, I had dumentation that someone was POA until the patient died and then other legal documents that another person would take over patient's funeral arrangements and estate once death occurred.  Person B that took over presented me with all the legal information and I let them have copies of the medical record.  As Alexander said, the estate or settlement arrangements can be seen as authorization to release records as long as you get a copy of them to put into the record.  I don't think it is a big a deal that you need to involve your legal department.  The person either has the information to support relationship, get a supporting document, or they don't.  The determining factors are very clear if you can or cannot release information.

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    Barbara Naimark
    Compliance Manager
    Hospice of the Chesapeake
    Severna Park,MD
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  • 6.  RE: records to family member of deceased patient

    Posted 06-14-2020 02:32 PM
    Agreed.  If one is comfortable looking up, reading, and applying state regulations and HIPAA regulations...that should do the trick.  From my perspective, I think this is an area that very likely falls well within the regular scope of what medical record staff deal with so that would be a good place to check if one has questions.


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