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Topic: Untangle HIPAA rules surrounding minors' privacy rights

HIM Connection, May 21, 2007

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Minors' privacy rights are a confusing aspect of HIPAA because they involve state and federal regulations that each covered entity must sort out individually.

In general, when dealing with unemancipated minors, the privacy rule requires their parents' or guardians' authorization to release records and allows parents or guardians to access the medical records of their children. This generally includes natural or adopted parents or a court-appointed legal guardian. State law will usually determine the parent or guardian and who has a right to see the records, says Chicago-based healthcare attorney William Roach Jr., Esq.

There are three exceptions to the general rule that parents are entitled to access to their children's health records:

1. If a state law allows a minor to receive a particular service--such as an abortion--without a parent's consent, and the minor consents to the service, then the minor controls who has access to those records. The parent can't access the PHI without the minor's authorization.

2. If a court appoints a guardian to make treatment decisions for the minor, the guardian determines who can access the minor's records. The guardian can deny the parents access to the records if he or she thinks it's in the best interest of the child.

3. If the parent or guardian agrees to a confidential relationship between the healthcare provider and the child concerning a healthcare service, then the child controls access to the records.

However, these three exceptions are not hard and fast. HIPAA allows you to disclose the information covered by these exceptions if state law permits, though HIPAA does not require the covered entity to do so, says Roach. A licensed healthcare professional exercising professional judgment must decide whether to disclose. This stance is because some states have passed laws allowing minors to consent to certain controversial treatments without a parent's consent (e.g., drug treatment or birth control) as a public health measure, but other states have passed blanket parental-access laws that give parents the right to see everything. "It's a good example of the government not wanting to deal with a topic and then obscuring the issue," Roach says. What all this means in practice is that the final say is that you must create your own policy, taking into account both HIPAA and your state's laws. Your policy will also have to consider that more protective state laws preempt HIPAA, so your attorney may need to weigh in, Roach says.

Editor's note: This article was adapted from the June 2007 issue of Health Information Compliance Insider. For more information, click here.

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