Frequently Asked Questions About Health Care Privacy in Guardianship Cases
Q: Are Attorneys Subject to HIPAA?
A: It depends. If a lawyer is acting on behalf of an entity covered by HIPAA (such as a nursing home), the lawyer is a “business associate” of the covered entity and is subject to HIPAA.
If the lawyer is acting on behalf of a lay person who is not covered by HIPAA, the lawyer is not subject to HIPAA but remains subject to attorney confidentiality rules.
Q: Can a Health Care Provider petition for guardianship or other protection?
A: Yes. A health care provider may disclose otherwise-protected information to an attorney to aid in a good-faith petition for appointment of a guardian. Specifically, HIPAA provides as follows:
Standard: Uses and disclosures to avert a serious threat to health or safety
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information if the covered entity, in good faith, believes the use or disclosure * * * “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person” and “is to a person * * * reasonably able to prevent or lessen the threat.”
45 CFR 164.512(j).
Washington State has a similar exception to its privacy law. RCW 70.02.050.
Q: Is HIPAA the Only Confidentiality Law Which Protects Patients?
A: No. Washington State has a Health Care Privacy Law (RCW 70.02). It also has an exception which allows disclosure for guardianship cases. RCW 70.02.050.
Washington also has a physician-patient privilege, which applies in court and usually prohibits health care providers from giving evidence about a patient. RCW 5.60.060. However, this privilege does not apply to guardianship cases. In re Guardianship of Atkins, 57 Wn.App. 771 (1990).