Section 11: Personal Representatives, Minors and Deceased Individuals – Uses and Disclosures of PHI

Section 11: Personal Representatives, Minors and Deceased Individuals – Uses and Disclosures of PHI

Definitions

Personal Representative: Any adult that has decision-making capacity and who is willing to act on behalf of a patient. A personal representative would include an individual who has authority, by law or by agreement from the individual receiving treatment, to act in the place of the individual. This includes parents, legal guardians or properly appointed agents, like those identified in documents such as a Durable Power of Attorney for Healthcare, or individuals designated by state law.

Minor: An individual under the age of 18 who has not been legally emancipated by a court and is:

  1. not legally or previously married;
  2. not serving in the armed forces;
  3. not presently an offender in the Texas Department of Criminal Justice or other correctional facility; or
  4. not at least 16 years old and living away from home and managing their own financial affairs.

Policy

As a general rule, minors, incapacitated and deceased individuals must have a Personal Representative identified in order to provide consent or authorization to use and disclose PHI. For the purposes of this policy, the Callier Center must recognize a Personal Representative as the individual responsible for providing: HIPAA consent (General Policy and Uses and Disclosures of PHI), and authorization for any other use and disclosure of PHI (Uses and Disclosures of PHI based on Patient Authorization). However, the Callier Center does not have to recognize a Personal Representative as the individual if the Personal Representative is suspected of abusing, neglecting or endangering the individual as specified below. All final determinations regarding the status of a Personal Representative shall be made by the Privacy Officer in consultation with legal counsel as appropriate.

Adults and Emancipated Minors

If a person has authority by law to act on behalf of an individual who is an adult or an emancipated minor in making decisions related to use and disclosure of PHI, the Callier Center will treat such person as a personal representative. Once a minor is emancipated, a guardian or a parent cannot be recognized as a personal representative.

Absent a legal document like a Durable Power of Attorney for Healthcare or formal guardianship documents, the following individuals, in order of priority, will have the right to act as the individual for HIPAA consent and authorization to release PHI. This includes both providing the HIPAA consent based Uses and Disclosures of PHI and authorizing the release of PHI on behalf of the patient. The following individuals, in order of priority, are:

  • Patient’s spouse;
  • An adult child of the patient who has the waiver (agreement) and the consent of all other qualified adult children of the patient to act as the sole decision-maker;
  • A majority of the patient’s reasonably available adult children;
  • Patient’s parent(s); or
  • The individual clearly identified to act for the patient (before the patient’s incapacity), the patient’s nearest living relative, or a member of the clergy.

Un-emancipated Minors

If a parent, guardian, or other person has authority by law to act on behalf of an individual who is an un-emancipated minor in making decisions related to use and disclosure of PHI, the Callier Center must recognize such person as a personal representative.

If a minor does not require the consent of an adult and may consent to treatment, as stated in Consent for Treatment of a Minor, the minor will be treated as an individual and may provide HIPAA consent or authorization for release of PHI.

Examples of where a minor, with authority by law, can act as an individual may include:

  • Diagnosis and treatment of a sexually transmitted disease
  • Family planning services
  • Alcohol/drug abuse treatment

Abuse, Neglect, Endangerment Situations

Notwithstanding a state law or any requirement of this paragraph to the contrary, the Callier Center may elect not to recognize a person as the personal representative of a patient. If the Callier Center chooses not to recognize a person as a personal representative, the Callier Center must decide that it is not in the best interest to treat the person as the patient’s personal representative and believes that one of the following conditions exists:

  • The patient has been or may be subjected to domestic violence, abuse, or neglect by a parent, guardian or personal representative.
  • Treating such person as the personal representative could endanger the patient.

Deceased Individuals

PHI generated during the life of an individual is protected from disclosure after death unless disclosure is for treatment, payment or health care operations. The Callier Center and its employees cannot release PHI regarding a deceased individual unless a valid personal representative has been established and the individual has requested the PHI through the proper authorization process.

If under applicable law an executor, administrator, or other person has authority to act on behalf of a deceased individual or of the individual’s estate, the Callier Center must recognize such person as a personal representative under this policy.

Absent an executor, administrator or other court-appointed representative for the deceased individual’s estate, the following individuals listed below may authorize the release of PHI in order of priority. An entire category must be exhausted (no people in the category exist or still alive) before moving to the next category. If there are questions, please call the UT Dallas University Attorney.

In the case of a deceased, married individual survived by a spouse with or without descendants:

  • Spouse
  • Adult children
  • Adult grandchildren
  • Parents
  • Adult descendants of parents (brothers and sisters)
  • Brothers and sisters’ adult children
  • Brothers and sisters’ adult grandchildren
  • Grandparents
  • Adult descendants of grandparents (uncles and aunts)

In the case of a deceased individual with no spouse (i.e., never married, widowed, or divorced and not remarried) with or without descendants:

  • Adult children
  • Adult grandchildren
  • Parents
  • Adult descendants of parents (brothers and sisters)
  • Brothers and sisters’ adult children
  • Brothers and sisters’ adult grandchildren
  • Grandparents
  • Adult descendants of grandparents (uncles and aunts)

Enforcement

All supervisors are responsible for enforcing this policy. Individuals who violate this policy will be subject to the disciplinary process for faculty, staff, students, or volunteers.

HIPAA Regulatory Citations:  45 CFR § 164.502(f), § 164.502(g)

Effective:  04/14/2003
Revised:  04/13/2013
Reviewed: 03/23/2021, 06/09/2015

Donise W. Pearson, HIPAA Privacy Officer
UT Dallas Callier Center