PERSONAL REPRESENTATIVES ARE ENTITLED TO OBTAIN A DECEDENT'S MEDICAL RECORDS
Some medical providers or facilities refuse to provide the medical records of a deceased person until there is proof that the person requesting the medical records has been appointed as the executor of the decedent's estate. This position violates the federal and state law out lined below.
Arizona Revised Statute § 12-2293 governs the release of medical records to patients. It states:
A. Except as provided in subsection B of this section, on the written request of a patient or the patient's health care decision maker for access to or copies of the patient's medical records,
the health care provider in possession of the record shall provide access to or copies of the medical records to the patient or the patient's health care decision maker
.
. . .
C. If the health care provider denies a request for access to or copies of the medical records, the health care provider must note this determination in the patient's medical record and provide to the patient or the patient's health care decision maker a written explanation of the reason for the denial of access. The health care provider must release the medical record information for which there is not a basis to deny access under subsection B of this section.
A.R.S. § 12-2294 governs the release of medical records to third parties. It states:
A. A health care provider shall disclose medical records or payment records, or the information contained in medical records or payment records, without the patient's written authorization as otherwise required by law or when ordered by a court or tribunal of competent jurisdiction.
B. A health care provider may disclose medical records or payment records, or the information contained in medical records or payment records, pursuant to written authorization signed by the patient or the patient's health care decision maker
.
. . .
D.
A health care provider may disclose a deceased patient's medical records or the information contained in medical records to the patient's health care decision maker at the time of the patient's death. A health care provider also may disclose a deceased patient's medical records or the information contained in medical records to the personal representative or administrator of the estate of a deceased patient, or if a personal representative or administrator has not been appointed, to the following persons in the following order of priority, unless the deceased patient during the deceased patient's lifetime or a person in a higher order of priority has notified the health care provider in writing that the deceased patient opposed the release of the medical records:
1. The deceased patient's spouse, unless the patient and the patient's spouse were legally separated at the time of the patient's death.
. . .
3. An adult child of the deceased patient.
The applicable federal law is governed by the Health Information Privacy and Accountability Act, 45 Code of Federal Regulations part 160 and part 164. As indicated by the following Department of Health and Human Services answer to frequently answered question on the topic, it is not necessary that a person be appointed the executor of the decedent's estate prior to being allowed access to the decedent's medical records:
Question: Can the personal representative of an adult or emancipated minor obtain access to the individual's medical record?
Answer: The HIPAA Privacy Rule treats an adult or emancipated minor’s personal representative as the individual for purposes of the Rule regarding the health care matters that relate to the representation, including the right of access under 45 CFR 164.524. The scope of access will depend on the authority granted to the personal representative by other law. If the personal representative is authorized to make health care decisions, generally, then the personal representative may have access to the individual’s protected health information regarding health care in general. On the other hand, if the authority is limited, the personal representative may have access only to protected health information that may be relevant to making decisions within the personal representative’s authority. For example, if a personal representative’s authority is limited to authorizing artificial life support, then the personal representative’s access to protected health information is limited to that information which may be relevant to decisions about artificial life support.
There is an exception to the general rule that a covered entity must treat an adult or emancipated minor’s personal representative as the individual. Specifically, the Privacy Rule does not require a covered entity to treat a personal representative as the individual if, in the exercise of professional judgment, it believes doing so would not be in the best interest of the individual because of a reasonable belief that the individual has been or may be subject to domestic violence, abuse or neglect by the personal representative, or that doing so would otherwise endanger the individual. This exception applies to adults and both emancipated and unemancipated minors who may be subject to abuse or neglect by their personal representatives.