Letter: HIPAA preempts state laws

By National Psychologist Staff
November 17, 2018

Hipaa ComplianceHIPAA preempts any state law that restricts a patient’s access to their records. It requires that you release a copy of the patient’s records to him/her, and all states require disclosure of records to third parties on patient request. (Records after death Sept/Oct issue)

When the patient dies, HIPAA requires that only their personal representative can authorize disclosures of the patient’s records. In effect, the personal representative becomes the patient (for purposes of authorizing disclosures).

HIPAA defers to state law as to who can be a personal representative. Typic-ally, this is the estate executor, who may or may not be a family member.

If you do have an ethical concern regarding a disclosure being requested by the personal representative, you can ask him/her for permission to create a summary of the records. If the personal representative agrees (and agrees to pay whatever fees you charge), then you may create said summary.

In sum, ethics must give way to the law; and the law requires that the personal representative has the final legal authority over such disclosures.

Bruce G. Borkosky, Psy.D., Panama City Beach, Fla.


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