United States: Protecting Health Information In The Context Of Divorce Proceedings And Domestic Relations – Part II

Last Updated: February 20 2015
Article by Michael J. Kline and Elizabeth G. Litten

(Part I of this series on privacy of health information in the domestic relations context may be found here.)

Tips on dealing with IHI Issues in the Domestic Relations Context

1. Whether an individual is in a stable domestic relations environment or involved in the breakdown of a relationship, careful attention should be given the Notice of Privacy Practices of the healthcare provider ("Provider") or health insurer or health plan (collectively, "Insurer") as to (i) who is entitled to access IHI in the possession of such Provider or Insurer and (ii) the extent to which a patient or subscriber has the right to block such access. For example, an employee subscriber of an employer health plan typically has access not only to all of his/her claims information, but also to all of the claims information of a covered estranged spouse and of dependents, even if such subscriber is not the custodial parent.

2. To the extent that an NPP of a Provider or Insurer does not answer a question about IHI access and blocking in the domestic context, an individual should direct the question to the Provider or Insurer, as applicable. However, there may not be a clear answer forthcoming.

3. Most Insurers permit a covered spouse to block access to his/her claims information from the other spouse, even if such other spouse is the employee subscriber or person responsible for paying for health care coverage. This is a matter that should be addressed in a domestic relations agreement because the spouse that is paying for health care coverage may have his/her premiums, copays, deductibles and limits of coverage affected by the claims of the other spouse. The desire to block access to IHI by the other spouse may be heightened in the case of diagnosis and treatment for sensitive health matters, such as mental illness, substance abuse, infectious diseases, etc. (This last consideration can be present even in a stable domestic relationship where a spouse wants to avoid disclosure regarding such potential ailments, even perhaps to prevent undue anxiety by the other spouse.)

4. Similarly, many Insurers will permit a spouse who has custody of children to block access to the claims information of such children from the other spouse, even if such other spouse is the employee subscriber or person who is paying for the health care coverage for the children. Again, consideration should be given to addressing this matter in a domestic relations agreement or divorce order or agreement because the spouse that is paying for health care coverage may have his/her premiums, copays, deductibles and coverage limits affected by unknown claims of children with respect to whom he/she lacks custody. Moreover, the custodial parent may wish to prevent access by the other parent to prevent what the custodial parent deems to be potential interference with the custodial parent's discretion as to the appropriate course of treatment and provision of health care services to the children. The HIPAA Privacy Rule generally allows a parent to have access to the child's medical records and claims information as the child's personal representative, as long as such access is not inconsistent with state or other applicable law.  Regardless, however, of whether a parent is the personal representative of a minor child, the HIPAA Privacy Rule defers to state or other applicable laws that expressly address the ability of the parent to obtain health information about the minor child.

5. Where there is shared custody of children, the issue can become even murkier. Without an agreement, there can be a new and unexpected domestic battlefield regarding access, control and blocking of IHI. While HIPAA requires a covered entity Insurer or Provider to treat a person that has authority (under applicable law) to act on behalf of another individual as the individual's personal representative (thereby treating the personal representative as the individual), a Provider may choose not to treat a parent as a personal representative in certain circumstances, including where the Provider reasonably believes, in his or her professional judgment, that the child has been or may be subjected to domestic violence, abuse or neglect, or that treating the parent as the child's personal representative could endanger the child.

(Part III of this series on privacy of health information in the domestic relations context will be posted shortly.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Michael J. Kline
Elizabeth G. Litten
 
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