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HIPAA and minors

Compliance Monitor, February 18, 2005

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Q: What does HIPAA say about allowing parents the right to see the medical records of their minor children? What about when the minor is being treated for "family-planning issues" and is accorded rights similar to adults? Can the minor place restrictions on access to his or her medical records?

A: The HIPAA privacy rule generally allows a parent to have access to the medical records as the child's personal representative when such access is consistent with their respective state's laws. The key issue here is that state law would rule in this case.

To wit, there are three instances in which a parent would not be the minor's personal representative under the privacy rule:

• When the minor consents to care and the consent of the parent is not required under state or other applicable law
• When the minor receives care at the direction of a court or a person appointed by the court
• When the parent agrees that the minor and the healthcare provider may have a confidential relationship

However, even under these exceptions, the parent may gain access to the minor's medical records related to this treatment when state or other applicable law requires or permits it; along the same lines, parental access would be denied when state or other law prohibits such access. If state or other applicable law is silent on a parent's right of access in these cases, the clinician may exercise his or her professional judgment to the extent allowed by law to grant or deny parental access to the minor's protected health information.

As is the case with respect to all personal representatives under the privacy rule, a clinician can choose not to treat a parent as a personal representative when the clinician reasonably believes that the child has been or may be subjected to domestic violence, abuse, or neglect, or believes that treating the parent as the child's personal representative could endanger the child.

Additional restrictions

If minors fit the above mentioned exceptions, they are permitted to exercise their privacy rights accorded under HIPAA as though they are adults. However, an assessment of the request to restrict access to the record would have to be made by the privacy official, most likely in cosultation with legal counsel.

This question was answered by Norman Werner, CHE, corporate director of corporate compliance at Continuum Health Partners in New York City, and a diplomate in the American College of Healthcare Executives.

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