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Who is considered a personal representative of a minor?

HIPAA Weekly Advisor, March 28, 2003

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Q: Who is considered a personal representative of a minor?

A: The rules state that, in most cases, the personal representative of a minor will be a parent, guardian, or other person acting with legal authority to make health care decisions on behalf of the child.

The regulations provide the following three situations in which the parent would not be considered the personal representative of a minor patient:

• When state or other law does not require the consent of a parent or other person before a minor can obtain a particular health care service, and the minor consents to the health care service.
• When a court determines or another law authorizes someone other than the parent to make treatment decisions for a minor
• When a parent agrees to a confidential relationship between the minor and the physician

A covered entity has discretion to provide or deny a parent with access to the minor's health information, if doing so is consistent with state or other applicable law, and provided that the decision is made by a licensed health care professional in the exercise of professional judgment.

Regardless of whether a parent is a personal representative, the regulations permit a covered entity to disclose minor information to a parent and to provide the parent with access to the minor's patient information when it is expressly permitted or required by state or other laws (including relevant case law).

Likewise, a covered entity would be prohibited from disclosing a minor's health information to a parent, or providing a parent with access to such information, when a state law expressly prohibits such disclosures or access to the parent.

The covered entity must establish and document procedures for verification of identity and authority of personal representatives, if not known to the entity. For example, a health care provider can require a copy of a power of attorney or other documentation to support the representation.

The regulations state that a covered entity may elect not to treat a person as the personal representative of an individual if

• The covered entity has a reasonable belief that the individual has been or may be subjected to domestic violence, abuse, or neglect by such person or treating such person as the personal representative could endanger the individual
• The covered entity exercises professional judgment to decide that it is not in the best interest of the individual to treat the person as the individual's personal representative.

Disclosures to a personal representative are treated as if the disclosure was made to the actual patient or enrollee, so they do not have to be listed in the accounting of disclosures.

Editor's note: Brought to you by attorneys Marty Baxter and Gretchen McBeath at Bricker and Eckler, LLP (http://www.bricker.com) and The Quality Management Consulting Group, Ltd. (http://www.qmcg.com). E-mail: mbaxter@bricker.com or gmcbeath@bricker.com.

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