“Hell, there are no rules here, we are trying to accomplish something.” ― Thomas A. Edison
The Modern World of Rules
Imagine life in Thomas Edison’s 19th Century America. It was primitive by our standards, and dangerous too. You worked or you didn’t eat. You had a fairly good chance of dying by the age of 40. You may or may not have had access to education. Your fate may have depended on the family and social class into which you were born. In short, it had lots of drawbacks by modern standards.
It also had advantages. Nobody had to fill out reams of unintelligible forms from various government agencies detailing every aspect of their lives – from what they earned, to what bank accounts they had, to whether or not they decided to buy health insurance. If you went to the doctor, you paid in cash. If you wanted to start a business, you just did. If you thought someone was going to be a good employee, you hired him. If he wasn’t, you fired him. Was it always fair? Of course not. But it was open, immediate, flexible, and infinitely less complicated than our modern world.
Many of us are still under the mistaken impression that much of that earlier, simpler world still survives. We think that, just because we want to do something, or “ought to be able to” do something, there aren’t rules preventing it. These days, that’s usually a dangerous assumption. One of the biggest challenges of modern life is simply to be aware enough of the relevant rules so that we can at least try to minimize the unintended consequences – the collateral damage – that those rules can impose on us.
The Unintended Consequences of HIPPA
The problem with any explicit rule, of course, is that although it is typically designed for a specific set of circumstances, it is usually applied more generally. As a result, rules almost always result in unintended consequences. I could give you dozens of examples, but today I want to highlight a little rule set known as HIPPA.
Congress passed the Health Insurance Portability and Accountability Act (HIPAA) in 1996. Among other things, HIPAA created a Privacy Rule that establishes national standards “to protect individuals’ medical records and other personal health information and applies to health plans, health care clearinghouses, and those health care providers that conduct certain health care transactions electronically.”
What HIPPA intends sounds rational, useful, and appropriate; and in fact, in most circumstances, it is just that. But imagine this: your 18-year old son heads off to college. During his first semester he goes out partying with friends. One of those friends stupidly decides to drive after having had a couple of drinks (18-year old males never do anything stupid, right?) and has a very bad accident. Your kid ends up in the hospital, and perhaps even in a coma. You find out about the whole affair from the daughter of a friend and call the hospital, wanting to know how your son is doing. In an extreme case, there may even be decisions to be made that will impact his life or future health.
Here comes the bad part. You are helpless. Because your son is legally an adult, HIPPA strips you of the ability to get involved. By “protecting” your son’s health information, HIPPA prevents you – his parents – from even knowing about, much less helping to make decisions about, his health care.
Overcoming Rules’ Resistance
The scenario depicted above comes as a complete shock to many people. Why wouldn’t parents be exempted from these so-called privacy rights for their young adult children? The answer, I believe, lies in the fact that – as lawmakers are aware – not all families consist of loving parents and children who welcome their involvement.
Indeed, I believe that the creators of HIPPA believed that they were doing more good than harm by preventing parents’ access to their children’s information – as crazy as that sounds to me and many other parents I know.
Nevertheless, if you fall into that category of loving parents whose children would welcome your involvement if they really, truly got into trouble, you both – children and parents – need to arrange your affairs to enable that involvement. Because of HIPPA, it isn’t going to be automatic. Here’s how to do it. There are two legal documents that the person whose medical information is at stake should fill out, have notarized, and keep in a safe but accessible place.
The first is a “HIPPA Privacy Authorization Form.” As its title suggests, this document creates an exception to HIPPA privacy rules for the specific person(s) named. If you have a family attorney, s/he can help you with this, but you can also do it yourself. A simple web search will give you several examples to choose from. You can also download a copy from the Griffin Black Resources Page.
The second is an “Advance Health Care Directive.” The same general directions as above apply. This is a longer and more complex document dealing with health care wishes and decision making – not just information. It is important for all adults, even young ones, to have filled out this form if they don’t want to leave their important health care decisions to chance.
These documents do not, strictly speaking require notarization. In my experience, however, notarization can give health care professionals an additional level of confidence in the document at a time when time is of the essence.
Much more information can be found on the web. A good place to begin is on the American Bar Association web site: www.americanbar.org/aging. Or call your family attorney or financial planner for additional assistance.