Revision 09-4; Effective December 1, 2009
Only an applicant's/recipient's personal representative can exercise the applicant's/recipient's rights with respect to individually identifiable health information. Therefore, only a applicant's/recipient's personal representative may authorize the use or disclosure of individually identifiable health information or obtain individually identifiable health information on behalf of an applicant/recipient. Exception: HHSC is not required to disclose the information to the personal representative if the applicant/recipient is subjected to domestic violence, abuse or neglect by the personal representative. Consult the regional attorney if you believe that health information should not be released to the personal representative.
Note: A responsible party is not automatically a personal representative.
If the applicant/recipient is an adult or emancipated minor, including married minors, the applicant/recipient's personal representative is a person who has the authority to make health care decisions about the applicant/recipient and includes a:
- person the applicant/recipient has appointed under a medical power of attorney, a durable power of attorney with the authority to make health care decisions, or a power of attorney with the authority to make health care decisions;
- court-appointed guardian for the applicant/recipient; or
- person designated by law to make health care decisions when the applicant/recipient is in a hospital or nursing home and is incapacitated or mentally or physically incapable of communication. Follow regional procedures to contact the regional attorney for approval.
A parent is the personal representative for a minor child except when:
- the minor child can consent to medical treatment by himself or herself. Under these circumstances, do not disclose to a parent information about the medical treatment to which the minor child can consent. A minor child can consent to medical treatment by himself or herself when the:
- minor is on active duty with the U.S. military;
- minor is age 16 or older, lives separately from the parents and manages his own financial affairs;
- consent involves diagnosis and treatment of a disease that must be reported to a local health officer or the Texas Department of State Health Services (DSHS);
- minor is unmarried and pregnant and the treatment (other than abortion) relates to the pregnancy;
- minor is age 16 years or older and the consent involves examination and treatment for drug or chemical addiction, dependency or use at a treatment facility licensed by DSHS;
- consent involves examination and treatment for drug or chemical addiction, dependency or use by a physician or counselor at a location other than a treatment facility licensed by DSHS;
- minor is unmarried, is the parent of a child, has actual custody of the child and consents to treatment for the child; or
- consent involves suicide prevention or sexual, physical or emotional abuse; and
- a court is making health care decisions for the minor child or has given the authority to make health care decisions for the minor child to an adult other than a parent or to the minor child. Under these circumstances, do not disclose to a parent information about the health care decisions not made by the parent.
The personal representative for a deceased applicant/recipient is an executor, administrator or other person with authority to act on behalf of the applicant/recipient or the applicant's/recipient's estate. These individuals include:
- an executor, including an independent executor;
- an administrator, including a temporary administrator;
- a surviving spouse;
- a child;
- a parent; and
- an heir.
Consult the regional attorney if you have questions about whether a particular person is the personal representative of an applicant or recipient.