There has been lots of confusion in Tennessee over how to obtain medical records of a deceased person.
Some providers require that an estate be opened and a HIPAA-compliant authorization be signed by the personal representative of the estate before they will turn over medical records. This is a ridiculous position – no one should have to go to the expense of opening an estate simply to gain access to medical records.
The Tennessee General Assembly came up with a fix. A new statute, embodied in Public Chapter 739, amends TCA Section 68-11-304 by deleting subdivision (a)(1) and substituting the following:
(1) Hospital records are and must remain the property of the various hospitals,
subject, however, to court order to produce the records. Unless restricted by state or
federal law or regulation, a hospital or other healthcare facility licensed or regulated
under part 2 of this chapter shall furnish to a patient or a patient’s authorized
representative, such part or parts of the patient’s hospital records without unreasonable
delay upon request in writing by the patient or the representative. As authorized by 45
CFR § 164.502(9)(4), if the patient becomes incapacitated or dies, and there is no
authorized representative for the patient, then the following individuals are considered to
be authorized representatives for the patient:
(A) The surviving spouse;
(B) If there is no surviving spouse, a surviving child; and
(C) If there is no surviving child, a parent.
Thus, if no estate is opened, the surviving spouse has the right to receive the records of the decedent upon request. If there is no surviving spouse, a surviving child has the right to receive them. And, if there is no surviving child, then the decedent’s parent has the right.
The way the statute is written both the surviving spouse AND the decedent’s parent have the right to receive the records IF there is no surviving child. I am not sure that is what the General Assembly intended, but that is what they wrote.
So, after July 1, 2024, certain family members will have a right to receive medical records of a deceased loved one even if there is no personal representative appointed. It appears that if an estate is opened and a personal representative has been appointed providers may take the position that only the personal representative can get the records.
If you order these records, give the provider what they need to comply with the law. See this draft letter as an example:
Dear Provider:
As evidenced in the death certificate attached to this letter, I am the surviving spouse of the late Sally Smith. Sally died in your hospital on June 1, 2024. No estate has been opened for Sally.
At your earliest convenience, please send me a complete copy of Sally’s medical records for the May 20, 2024 through June 1, 2024 admission to your facility. I will pay copying and other charges as required by law.
If you have any questions concerning this request, please call at 615.867.5309.
Sam Smith