Both the HIPAA Privacy Rule and Hawaii law give you rights with respect to your medical record. The HIPAA Privacy Rule sets standards that apply to records held by health care providers across the nation. Hawaii law sets standards for records held by doctors, hospitals and other health care providers within the state. Most health care providers must follow both the HIPAA Privacy Rule and Hawaii law. If a standard in Hawaii law conflicts with a standard in the HIPAA Privacy Rule, your health care provider must follow the law that is the most protective of your rights.
Summary of Your Rights
In Hawaii you have the right to:
- See and get a copy of your medical record.
Your health care provider usually must let you see your medical record or give you a copy of it no later than 30 days after they receive your request. This right is called the right to access your medical record.
Your health care provider is allowed to charge you a fee for copying your record. They can also charge you the actual cost for postage if you have the copy mailed to you.
- Have information added to your medical record to make it more complete or accurate.
This right is called the right to amend your record. In certain cases, your provider can deny your request to amend your record. If this happens, you have the right to add your own short statement to your medical record.
- File a complaint.
You have the right to file a complaint with the Office for Civil Rights, U.S. Department of Health and Human Services if you believe your health care provider has violated your right to see, get a copy of, or amend your medical record. You can also file a complaint with the state agency that regulates your health care provider.
You can learn more about these rights in the following sections of guide.
Who Has to Follow THESE LAWS?
Most Hawaii health care providers, such as physicians, surgeons, osteopaths, podiatrists, and hospitals, must follow both the HIPAA Privacy Rule and state laws that give patients rights in their medical records.
There are some health care providers, however, that do not have to follow the HIPAA Privacy Rule. The HIPAA Privacy Rule only covers health care providers that use computers to send health information for certain administrative or financial purposes (such as filing claims for insurance).
Sometimes Ashley goes to a doctor at a free clinic for medical treatment. The doctor does not accept private insurance, Medicaid, or Medicare. The doctor does not file any insurance claims. Ashley’s doctor probably does not have to follow the HIPAA Privacy Rule because the doctor does not appear to send health information for the types of administrative or financial purposes that would make her a covered health care provider under the Rule.
If you have questions about whether your health care provider must follow the federal HIPAA Privacy Rule, you can contact the Office for Civil Rights, U.S. Department of Health and Human Services (OCR), the agency that is in charge of enforcing the HIPAA Privacy Rule. Section 4 of this guide lists contact information for OCR.
Are nursing homes covered by HIPAA?
Yes. Most nursing homes are covered by the HIPAA Privacy Rule. They also have to follow other specific rules that only apply to nursing homes and long term care facilities. Because the rules for nursing homes are different than they are for other health care providers, they are not covered by this guide.
What if my health care provider does not have to follow HIPAA?
Even if your provider does not have to follow the HIPAA Privacy Rule, they still have to follow Hawaii laws that give you rights to your medical record. Section 6 lists some resources where you can read these state laws.
This guide, however, only explains how to get your medical record from Hawaii providers who have to follow the HIPAA Privacy Rule and state law.
What Records Do I Have the Right to Get and Amend?
You have the right to see and get a copy of your medical record. This right often is called the right to access your medical record. You also have the right to have information added to your medical record to make it more complete or accurate. This right is called the right to amend your record. (This guide will call these rights the "right to get and amend.")
Your medical record includes such things as:
- Information that identifies you, such as your name and Social Security number.
- Information that you tell your doctor, such as:
- Your medical history.
- How you feel at the time of your visit.
- Your family health history.
- The results of your examination.
- Test results.
- Treatment received in a hospital.
- Medicine prescribed.
- Notes your doctor makes about you.
- Other information about things that can affect your health or health care.
You have the right to see, get a copy of, and amend these records whether they are kept on paper, on a computer, or in another format.
Who owns my medical record?
Under Hawaii law, your provider owns the actual medical record. For example, if the hospital maintains paper medical records, they own and have the right to keep the original record, but you have the right to see and get a copy of it.
What happens if my medical record has information in it that came from a different health care provider?
Generally, if your provider has the medical information that you request, they must give it to you. You have the right to get the information no matter who originally put it in the record. Your right to amend this information may be limited, though. For more information about how to amend information in your record you can read Section 3 of this guide.
Do I have the right to get and amend records related to substance abuse or mental health treatment?
Maybe. The rules for when you can get and amend your records about mental health and substance abuse treatment can be different. For example, psychotherapy notes are treated differently than other records under HIPAA. Because the rules for mental health and substance abuse records can be different they are not discussed in this guide. You can find some resources that explain your rights in these types of records in Section 6.
Who Has the Right to Get and Amend My Medical Record?
You have the right to see and get a copy of medical records that are about you. You also have the right to correct medical records that are about you by having information added to them. (This guide calls these rights the right to "get and amend" your medical record.) If there is someone who acts as your personal representative, they usually have the right to get and amend your record on your behalf.
Do I have the right to get and amend my minor child’s medical record?
Generally, yes. As a parent or guardian, you generally have the right to get and amend your minor child’s medical record. In Hawaii, you usually have these rights when your child is younger than 18 years old.
As a parent, do I always have the right to get and amend my child’s medical record?
No. A parent does not always have the right to get and amend a minor child’s medical record. For example, if a health care provider reasonably believes that a parent is abusing or neglecting a child, the provider does not have to give the parent access to the child’s medical record.
Some other situations where parents do not have the right to get and amend their child’s medical records are discussed in the following questions and answers.
Who has the right to get and amend my child’s medical record once she turns 18?
Once your child turns 18, your child has the right to see, get a copy of, and amend her own medical record. This includes getting access to records that were created when she was still a minor. After your child turns 18, you usually no longer have the right to get and amend your child’s medical record just because you are her parent.
I am under 18 and am married. Who has the right to get and amend my medical record?
In Hawaii, if you are under 18 and married, you have the right to consent to your own medical treatment. You also have the right to get and amend medical records that are related to this treatment. Your parents generally do not have the right to access your medical record once you are married.
I am an unemancipated minor but I can legally consent to certain kinds of medical treatment without my parents’ permission. Who has the right to get and amend my records that are related to this treatment?
It depends. In Hawaii, as an unemancipated minor you can consent to certain types of medical treatment without the permission of your parents. For example, you can consent to treatment related to sexually transmitted diseases, pregnancy, or family planning without the permission of your parents. When you, as a minor, obtain such services or treatment, you have the right to get and amend your medical records related to this treatment. In Hawaii, it is up to your health care provider whether your parents also have the right to get and amend these medical records.
Jason is sexually active and under 18. He consents, on his own, to be tested for gonorrhea. Jason’s mother later requests a copy of his medical record. It is up to Jason’s doctor, using his professional judgment, to decide whether Jason’s mother should get the part of the record about Jason’s gonorrhea test.
The rules may be different when you, as a minor, obtain testing or treatment for other medical conditions (such as mental health) without parental consent. If you have questions or concerns about whether your parent will have access to your medical information, you should talk to your health care provider.
I am listed as my mother’s agent on her power of attorney for health care. Do I have the right to get her medical records?
Yes. If you are your mother’s agent for health care, you generally have the right to get and correct medical records that are relevant to making health care decisions on her behalf. You have the right of access only while the power of attorney is actually in effect.
Maria’s mother signed a health care power of attorney form that gives Maria the power to make health care decisions if her mother is unable to make such decisions. Maria’s mother was in a bad accident and is not able to make decisions about her health care. Maria now has the right to make health care decisions on her mother’s behalf. She also has the right to get her mother’s medical records. For example, Maria has the right to see the records about her mother’s current medical condition and treatment.
Maria is curious about the time her mother had a miscarriage. Maria wants to look at these old medical records. Maria does not have the right to get and amend these old medical records because the records have nothing to do with her mother’s current condition or treatment.
It depends. You have the right to get a deceased person’s medical records from a Hawaii health care provider if you are the personal representative (such as the executor or administrator) of the deceased person's estate. You will need to present documentation showing that you are the personal representative to the health care provider in order to obtain the records.
What happens if no personal representative was appointed when my father died?
If no personal representative was appointed, then the deceased’s next of kin, in the following order of priority, usually may obtain copies of the deceased person’s medical records:
- The spouse or reciprocal beneficiary
- An adult child
- Either parent
- An adult sibling (brother or sister)
- A grandparent
- A guardian at the time of death
Only the highest person on the list who is alive and who is not incapacitated has the right of access. For example, if your father has no surviving spouse, then you, as their adult child, have the right of access. However, your father’s brother or sister would not have the right of access because they are lower on the list.
If there is more than one person at the same level on the list, all persons at that level have the right of access. For example, if both your mother and father are deceased and there are three adult children, all three of the children have the right of access to your deceased parents’ medical records.
You will need to give the health care provider from whom you are requesting records an affidavit in which you explain how you are related to the deceased person and why you have the right of access. For example, an adult child would need to explain that they are the adult child of the deceased that they have the right of access because there is no surviving spouse.
I don’t want my next of kin to have access to my medical records after I die. Is there anything I can do?
You can give your health care provider a written note telling them not to give your next of kin access to your medical records after you die. Your provider is required to follow your directions.
How Long Does My Provider Have to Keep My Medical Record?
Hawaiian health care providers (such as medical doctors, surgeons, podiatrists and hospitals) generally must keep your whole medical record for at least seven years after the last time they entered information in your record. Health care providers must keep minors’ medical records at least until the minor turns 25.
In addition, health care providers in Hawaii are required to keep basic information from the medical record for 25 years after the last entry. They must keep basic information from minors’ medical records for at least 25 years after the minor turns 18.
You have a right to see, get a copy of, and amend your medical record for as long as your health care provider has it.
