May adults with mental retardation control their protected health information if they are able to authorize uses and disclosures of their protected health information?

Answer:

Individuals may control their protected health information under the HIPAA Privacy Rule to the extent State or other law permits them to act on their own behalf. Further, even if an individual is deemed incompetent under State or other law to act on his or her own behalf, covered entities may decline a request by a personal representative for protected health information if the individual objects to the disclosure (or for any other reason), and the disclosure is merely permitted, but not required, under the Rule.

However, covered entities must make disclosures that are required under the Rule (i.e., disclosures to the Secretary under subpart C of part 160 regarding enforcement of the Rule, and to the individual under 45 CFR 164.524 and164.528 with respect to the individual’s right of access to his or her protected health information and an accounting of disclosures, respectively). Consequently, with respect to the individual’s right of access to protected health information and for an accounting of disclosures, covered entities must provide the individual’s personal representative access to the individual’s protected health information or an accounting of disclosures upon the request of the personal representative, unless the covered entity, in the exercise of professional judgment, believes doing so would not be in the best interest of the individual because of a reasonable belief that the individual may be subject to domestic violence, abuse or neglect by the personal representative, or that doing so would otherwise endanger the individual. The Rule allows a specified time period before a covered entity must act on such a request; and during this interim period, an individual and his personal representative will have an opportunity to resolve any dispute they may have concerning the request.