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Disclosing Information

Reprinted from PN March 2011


How to get VA to share information with family members.

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Question: “My husband is a life member of PVA. He was wounded in1969 in Vietnam and incurred a spinal-cord injury (SCI). Last year, he tipped over his wheelchair and ended up with a mild brain injury. He now needs more assistance with his activities of daily living because he has trouble remembering things. He filed a claim for service connection for the brain injury and a need for higher Aid and Attendance benefits with VA through his PVA service officer, which was subsequently approved. The Department of Veterans Affairs (VA) also ruled my husband is competent to manage his own affairs. Despite this fact, he has asked me to become more involved regarding his VA benefits and medical treatment. However, the VA officials I met with in the past will not speak to me about his issues unless my husband is present and gives his permission for them to talk to me. How can I get VA to honor my husband’s wishes?

Answer: As you described, family members who attempt to act on behalf of veterans are often unable to submit or obtain benefit-related or healthcare information from VA. VA is prohibited by law from disclosing any information considered confidential or healthcare related. The Privacy Act of 1973 as well as the Health Insurance Portability and Accountability Act (HIPAA) of 1996 are the two main laws that prevent the unauthorized disclosure of protected information.

Despite the confidential and privileged nature of this information, in most cases your husband can give permission to VA to authorize release. To do so he must submit a completed VA Form 21-0845, Authorization to Disclose Personal Information to a Third Party.

This form authorizes the designated third party to submit certain information on behalf of the veteran and allows VA to release specified information that is normally protected. The information authorized for release can be unlimited or limited, as specified by the veteran. For example, it can be restricted to the status of claims, benefit information, payment history, payment rate, and/or debt owed VA. Family members or other designated individuals can also provide certain information to VA such as changes in address or direct deposit accounts. VA may require the designated persons to correctly answer a security question to confirm they are the authorized designee.

Upon receipt of VA Form 21-8045 at the VA Regional Office, officials will ensure the form is properly completed and includes:

- Signature and date

- Name and file number of the claimant or beneficiary

- Contact information (address, daytime or cell phone number, or e-mail address)

- Type of information authorized for release

- Length of time authorization is valid (if applicable)

- Security question and answer

Per VA rules, only one VA Form 21-0845 is valid at a time, and individuals can only designate one person or organization. If a new form is received, VA will automatically revoke the prior authorization. VA will not accept an incomplete form and will return it to the veteran for correction. A completed release does not revoke the authorization of a duly appointed veterans service organization (VSO) to serve as the veteran’s representative.

In cases where VA has determined the veteran or beneficiary is incompetent to manage his or her own affairs, only the VA-appointed fiduciary may sign VA Form 21-8045. The form may not be executed by, or accepted from, any beneficiary recognized as incompetent for VA purposes.

In the VA Medical Care System, different procedures are established to authorize the release of confidential health information. Veterans may appoint a personal representative to act on their behalf when making decisions related to their healthcare.

Your husband could sign a general Power of Attorney (POA) to appoint you as his agent to perform certain specified acts or to be provided with information related to his medical conditions, care, and treatment. The POA must detail the extent to which you can make decisions related to his care and whether you are authorized to exercise his privacy rights.

Another option is VA Form 10-0137, Durable Power of Attorney for Health Care, which permits a patient to appoint a specific healthcare agent to make medical decisions on his or her behalf if the patient is incapable of doing so. This includes decisions as to whether to release and/or obtain medical records and information about the patient, or how such information can be used.

Regardless of the type of POA that is presented to VA’s healthcare system, VA officials are required to carefully check the document to make sure it is:

- Signed by the veteran giving the power

- Dated

- Notarized and signed by a licensed notary

- Specifically noted who is the third party agent to act on behalf of the veteran, which may also be an organization or entity

A Durable Power of Attorney for Health Care does not have to be notarized. If the preceding conditions are met, VA will determine the specified acts the veteran has authorized the agent to perform, such as reviewing and/or releasing medical records.

If there is doubt as to the veteran’s competency to make decisions, VA will determine if the POA authorizes the third party to act on his or her behalf. If there is no language to that effect in the POA, the POA will not be honored as long as the veteran is determined to be incompetent.

Finally, even if an original POA is presented, VA employees are not required to honor it if there is some question as to the document’s authenticity or if there are other legal or administrative bases for questioning whether the person holding the POA is acting in the veteran’s best interest. In such cases VA officials will contact the local VA regional counsel’s office for guidance.

If veterans wish to release or obtain a copy of their medical records, they can do so by completing VA Form 10-5345, Request for and Authorization to Release Medical Records or Health Information, at the records office at the local VA medical center. VA will release the specific information once they confirm they have it in their possession and the veteran is competent to request the release.

Contact: PVA Veterans Benefits Department, 800-424-8200.

 

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