Personal Representatives: Who may act for a patient, and when

45 CFR 164.502(g) is the requirement on personal representatives. It is short to read and easy to underestimate, because satisfying it means producing evidence rather than holding an intention.

What the rule says

45 CFR 164.502(g) governs personal representatives. The operative text is not reproduced here: read it at the source linked below, because the conditions in it are the requirement and a summary of a conditional rule is not a safe substitute for the rule.

Who counts is set by 45 CFR 164.502(g): a person with authority under applicable law to make health care decisions for an adult or emancipated minor ((g)(2)); a parent, guardian or person acting in loco parentis for an unemancipated minor, except where the minor consents to the care and no other consent is required, may lawfully obtain it without that consent, or the parent agrees to confidentiality between the provider and the minor ((g)(3)); and an executor, administrator or other person with authority for a deceased individual or the estate ((g)(4)). Each is treated as the individual only for the PHI relevant to the representation. Under (g)(5) a covered entity may elect not to treat a person as the personal representative where it reasonably believes the individual has been or may be subjected to domestic violence, abuse, or neglect by that person, or that doing so could endanger the individual, and decides in professional judgment that it is not in the individual's best interest.

What this looks like in practice

In an assessment, 45 CFR 164.502(g) is not one question. It resolves into several, and each one is really asking for different evidence. These are among the questions asked about it:

• Does the organization verify the identity of individuals exercising their privacy rights and manage authorized access by personal representatives and proxies?

Ownership usually sits with the privacy official, though the evidence is often produced by someone else, which is where the trail breaks. A control that works but has no owner tends to stop working the month the person who quietly maintained it changes roles.

Who this applies to

Covered entities. A business associate is bound directly by the provisions that name it (for example 45 CFR 164.502(a)(3), the minimum necessary standard at 164.502(b), and 164.410) and otherwise through its business associate agreement, so read the provision for whom it names. The Privacy Rule has no counterpart to the Security Rule's flexibility-of-approach clause (164.306(b)). Instead, 45 CFR 164.530(i)(1) requires policies and procedures reasonably designed for the size and type of your activities, and any deadline a provision sets applies at every size.

Building it, in order

The sequence below is the order that produces evidence as a by-product rather than as a separate documentation exercise:

1. Establish an identity-verification process for individuals requesting access to or action on their information.
2. Define how personal representatives, guardians, and caregivers may be authorized for proxy access and the scope of that access.
3. Implement controls to prevent unauthorized proxy access and to protect sensitive information where proxy rights are limited.
4. Document verification and proxy decisions.

Evidence an assessor asks for

For this requirement the evidence type that satisfies it is a procedure. The distinction matters more than it looks: a policy states what you intend to do, a procedure states how, and a record proves it happened on a date. Auditors ask for all three, and a practice that has written the first two often has nothing for the third.

Date every document and keep the superseded versions. Under 45 CFR 164.530(j)(2) the documentation 164.530(j)(1) requires is kept six years from the date of its creation or the date when it last was in effect, whichever is later. It is the same period the Security Rule sets at 164.316(b)(2)(i), under a different provision, so cite the one that governs the document you are holding.

Where this usually goes wrong

The usual gap is a control that exists in practice and nowhere in writing. Someone does the work, reliably, and it has never been written down, so the organization cannot demonstrate it and cannot notice when it stops. The fix is not more control, it is a dated record and a named owner.

What to do about it

• Produce the evidence, not the intention. For 45 CFR 164.502(g) that means a step-by-step procedure someone unfamiliar with the task could follow. If the only evidence is that someone knows how this works, you have a practice and not a record.
• Put a name on it. Your privacy official should be recorded as the owner. A control with no owner stops working the month the person who quietly maintained it changes roles, and nobody notices.
• Re-read it when something changes. A new system, a new vendor or a departure is what makes a correct control stale. Tie the review to those events as well as to the calendar, and date the result.

Work backward from the evidence. Decide what evidence would prove personal representatives to someone who does not already trust you, then build the control that produces it. Programs built in that order tend to stay current, because the evidence goes stale visibly.

Related requirements

• Minimum Necessary: Applying minimum necessary to real workflows
• Business Associate Contracts: The privacy-side contract requirements
• Permitted and Required Uses and Disclosures: The default rule and its exceptions

References

• 45 CFR 164.502(g), in 45 CFR 164.502 on eCFR.
• This post describes what a requirement asks for and what evidence documents it. It is not legal advice, and your counsel owns the conclusion. State law may impose stricter obligations (45 CFR 160.203).