It's a common scenario: A Florida nursing home resident dies, and his or her spouse, surrogate, proxy, or attorney requests the resident's medical records. However, if the nursing home releases the records, it might be violating federal law. If it doesn't, it violates Florida law. A federal court recently noted this "Catch-22" and declared the Florida law invalid. Below, we explain the court's decision, what it means for Florida nursing homes, and its broader implications to all Florida healthcare providers.
Florida Statutes Section 400.145 provides that nursing homes "shall furnish to the spouse, guardian, surrogate, proxy, or attorney in fact . . . of a former resident . . . a copy of that resident's records which are in the possession of the facility." Also, "Copies of such records . . . may be made available prior to the administration of an estate, upon request, to the spouse, guardian, surrogate, proxy, or attorney in fact."
However, the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") provides that nursing homes may only release medical records to a patient or his/her personal representative. 45 C.F.R. 164.502(a)(1), (g)(1). When a patient is deceased, "personal representative" means an "executor, administrator, or other person [who] has authority to act on behalf of a deceased individual or of the individual's estate." 45 C.F.R. 164.502(g)(4).
Thus, a person authorized under Section 400.145 can be – but is not always – the same as the personal representative under HIPAA. As a result, Florida law requires nursing homes to release medical records even though doing so might violate federal law.
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