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It depends on how the POA is worded.
Some stipulate that they do not go into effect unless the person is unable to make decisions and give clear guidance on what documentation is required. Typically a doctor's note, sometimes two.
It really is a matter of reading the POA completely.
Manager, Health Information Management Department
R1 RCM Inc. | email@example.com
St Vincent Health
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Here are some front-line tips and cautions about POAs and related documents, in medical records and in patient care. (I'm *not* an attorney, but this is how it played out in my office in one US state. I say "Agent" to describe the "A" in POA - A person creates a POA to delegate powers to their Agent.)People often are confused because there are many variations among POA's. You have to answer a few questions before you start problem-solving!A basic distinction is between a POA that goes into effect immediately - versus - one that is "springing" or "triggered," meaning it will go into effect only when certain conditions become true. Either type of POA might also be set up to be "Durable" - meaning that once it goes into force, those powers belong to the agent permanently (unless overridden by a court).(1) Your Risk Manager is thinking of the second basic type: one that is designed to go into effect *ONLY* if the person becomes incapacitated, or is unable to communicate, or is permanently unconscious, or becomes temporarily psychotic or manic, etc. The POA itself should specify exactly what those triggering conditions are. Sometimes it will specify exactly *how* those conditions are to be judged - for example, "if two physicians agree that..." or "if testing determines that..." Once the POA is triggered, the Agent takes over the powers listed and their judgment is substituted for the person's. If the POA is "Durable" then, once the person is incapacitated by dementia or other conditions, the Agent is in charge, even if the person wants to write a check or becomes angry at the agent. (Some POAs, e.g., Advanced Psychiatric Directives, may have provisions for being turned back "off" when the person has recovered their capacity.)Understand that a well-executed health-care POA doesn't "expire," any more than a marriage certificate or adoption does. Get legal consultation before you reject one based only on its date.CHECK YOUR STATE LAW to understand obligations and limitations for health-related POAs or Durable POA's. (They may be bundled into the same document as an Advance Directive, or may be a separate Power of Attorney for Health Care, or appointment of a Health Care Proxy.) These are pretty serious directives and are generally witnessed and notarized - but as far as I know, no states require them to be filed with a court.===========================(2) There is another whole category of POA documents that are created more informally and don't follow the state-law specifications for the first group. Essentially, these delegate chores or errand to an agent, for the convenience of the person. The person *DOES NOT* give the agent any power to make decisions to overrule them. If the person and the Agent disagree, follow the instructions of the person!These POA's go into effect as soon as they are written, unless they say differently. They appoint an agent to carry out certain tasks in the person's absence. These can be revoked at any time by the person. (Just as with HIPAA authorizations, as soon as you get a statement from the person revoking the informal POA, treat it as revoked from that time forward.)
Those lesser POA's often delegate the agent to do a few specific things (charge items to the person's account, pick up packages, pick up their employer's child at school, transport them, enroll them in activities, consent to routine or urgent medical care). Some of them broadly allow the agent to run the household and finances and care for the kids while the person is out of the country or incarcerated. The wording matters, and they're all different! (If the basic document passes inspection, and the desired power is specifically named, we usually went ahead if the instructions seemed reasonable and fit what we knew already about the person and family - but we had a manager or clinician sign off on that plan to go along.)Watch out for the POA's that use a few words to cover anything and everything, *or* that only specifically mention financial items. I did not accept any for non-emergency health-care or HIPAA purposes unless they specifically addressed heath care / health records.There are two big issues with this big category of less-formal POAs -- "Is it forged, or real?" AND "Is it outdated, or still good?" I usually try to determine those conditions before getting far into the details of what kinds of permission the specific document gives.
If the *person* brings the document to you, and says it is still in force, document that! And ask for confirmation at each readmission. (Perhaps have the person execute those same instructions on your own form, if you have an appropriate one.)
If the *agent* brings you a document, claiming to have powers, then apply due diligence: check whether it has the person's notarized signature, and whether it has a recent date. If not, is there any way you can contact the person directly to confirm the document? A phone call can solve a lot of problems. With the passage of time, it may have been revoked, relationships may have changed, etc.====================We tried to balance customer service and practical problem-solving against a healthy amount of suspicion against scammers and stalkers! You see how that can get complicated. You can set policies to require recency of date, notarization, etc. I like to involve a clinical manager to try to reach a sensible decision that didn't put undue burdens on the person or family. Particularly in low-income families, or those who are fearful of courts or attorneys, people may give serious instructions about their wishes in formats that don't tick all the formal boxes. Telling them to "go to court and then come back with an order" isn't always a patient-centered policy. Even telling the person to appear at your office to sign a new document might require taking a day off work, getting childcare, paying for a ride, etc. Balance your own risk management against the patient's needs and resources. When you're crafting policies and procedures in these areas, you need Social Work or Patient Advocates sitting in as well as Risk Management, or your procedures won't work in true-life practice.(Finally, notice that people often confuse a POA with a Guardianship. A guardianship is more sweeping, and it SUBSTITUTES the guardian's judgment over the persons. It must be ORDERED by a court, based on persuasive evidence that the person is incapacitated. Guardianships rank over POAs; Health providers *must* follow a Guardian's instructions in much the same way they would follow a parent's instructions for a minor's care. If someone says they're the Guardian, but can't produce a signed, dated COURT ORDER, they haven't proven their status. You could be helpful by offering to contact the court that allegedly issued it, but you do encounter people who think they are Guardians... who aren't.)Hope this is helpful in untangling the real-life messes!
Cyli: You said: However my CEO is telling me we can release records and talk to the POA.Another problem-solving approach is to shift frames away from "POA," and ask "What does HIPAA Friends and Family allow us to do?"
If patient has executed a POA appointing this person as their health care proxy in extremis, then surely the person named is close enough to fit the "Friends and Family involved in care" category of HIPAA. Unless the patient specifically objects, you absolutely have HIPAA clearance to SPEAK with this person!
Once you determine what the person wants / needs, first look at it in a HIPAA frame - do they want info from records to help care for the person? Need records to be shared with other provider? Their request might be totally covered by basic HIPAA exceptions. (And if you haven't already, go to the HHS site and download a selection of the big set of guidance and FAQ docs released early in 2017 to explain Friends and Family involvement! Very handy to share with Risk Manager, balky clinicians, others who are not up to date on those important provisions.)*Also* read the POA using the pointers in my other post. If it *is* set up so that it does not take effect *until* a trigger event occurs, then helpfully point that out to the Agent. They may need to get a second, much simpler document to use in the meantime (e.g., one appointing them as a Representative for HIPAA or for Social Security Disability purposes).(I see some POA's that are very over-written - they go on for pages beyond what's needed. As a result people believe they "cover everything" but crucial provisions get buried in all the garble and others aren't there after all.)Best, RC
Cyli, you asked: could you help me find the link where the HHS has guidance and FAQ docs released early in 2017 to explain Friends and Family involvement!Now I can't find the list-of-links page, but here are several direct spots. A lot of this is *not* well known among clinical and medical-records professionals!Fact Sheets for Patients: https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/consumers/consumer_ffg.pdf and https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/consumers/sharing-family-friends.pdfProviders Guide: https://www.hhs.gov/sites/default/files/provider_ffg.pdfseveral specific FAQs with citations - skim the questions, may directly address your situation: https://www.hhs.gov/hipaa/for-professionals/faq/disclosures-to-family-and-friends/index.htmlhttps://www.hhs.gov/hipaa/for-individuals/family-members-friends/index.htmlhttps://www.hhs.gov/hipaa/for-professionals/special-topics/same-sex-marriage/index.htmlMANY fact sheets etc that touch on mental health / friends & family https://www.hhs.gov/hipaa/for-professionals/special-topics/mental-health/index.htmlHope this is helpful.