Under Federal and Florida law, the medical records of nursing home residents are available to a variety of duly authorized individuals and representives. Interested parties must know their rights to keep from being deterred by nursing homes in their quest for the records. This blog summarizes the laws that can be utilized to obtain the records.
Section 164.502(g) of Title 45, Subtitle A, Code of Federal Regulations (part of HIPAA), provides that nursing homes must treat any person who has authority to act on behalf of a deceased individual as if that person was the deceased individual.
Section 400.145(1) of the Florida Statutes declares that nursing home records shall not be considered as part of an estate and are to be made available to a spouse, guardian, surrogate, or proxy prior to administration of an estate.
Both HIPAA and 400.145(1), Fla. Stat. also require nursing homes to make records available even though the person is still alive. Section 164.502(g) of the C.F.R. provides that nursing homes are required to disclose records to any person authorized to act on behalf of an individual with regard to health care. Section 400.145(1) of the Florida Statutes requires the release of nursing home records to any spouse, guardian, surrogate or proxy for a resident who has not died.
Finally, Section 765.401 of the Florida Statutes describes the authority of a “proxy” to act on behalf of an incapacitated person. A proxy is defined as including the patient’s spouse, an adult child of the patient, a parent of the patient, and even a close friend of the patient.
When our law firm is hired by a resident or an authorized representive to investigate a nursing home negligence case, we begin our request for records from the target facility by submitting a document we call an “Affidavit of Relationship and Authorization for Release of Medical Records.” This document sets forth the legal basis of our right to the records. If this method fails, we may send another letter or phone the facility to explain our position further. A facility that fails to comply with a duly authorized request for records is subject to being sued pursuant to Section 400.0233, Fla. Stat. as authorized by Section 400.0234, Fla. Stat.
Interested parties suspecting wrongdoing should not be deterred from seeking the truth by a stonewalling nursing home. The assistance of legal counsel may be needed to obtain the records and a fair remedy.
Contact us Toll free at 866-785-GALE or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.