HIPAA Compliance Strategies

Confusing Issues Surround HIPAA Treatment and Disclosure Rights of Minors

Reprinted from the November 2006 issue of REPORT ON PATIENT PRIVACY, the industry's most practical source of news on HIPAA patient privacy provisions.

One plea often heard from covered entities (CEs) is for relief from the patchwork of state privacy laws, which conflict, overlap, confuse and confound compliance with the national privacy regulation. A new survey reveals some commonalities in state law when it comes to the privacy rights of minors.

CEs have taken these concerns to Congress, and a few bills have been introduced that would level the playing field to some degree. However, it is unlikely any will pass before the 109th Congress adjourns.

But there's one area where states will always reign supreme, and Congress will be of no help. That's in the nettlesome domestic-relations arena.

State laws historically prevail in matters between family members, and the privacy rule specifically directs CEs to comply with state laws on minors.

Generally speaking, CEs must comply with both state privacy laws and the federal privacy rule. CEs must determine which is more protective of a person's rights and follow that one. When it comes to minors' rights, however, only state laws apply, according to the federal privacy rule.

Minors' Control Is a New Twist

While that would appear to simplify compliance, the privacy rule added a big wrinkle, when it comes to minors' rights to consent to treatment and to control protected health information (PHI).

Other than in specified circumstances, state laws typically deem the parent or guardian the "personal representative" for the minor, meaning they control PHI.

"Health care providers have been dealing with the issue of whether minors can independently consent to health care for a long time," says David Ermer, managing partner of Gordon & Ermer, a D.C. health care law firm. "But the privacy rule says that if minors can — and do — consent, then they control their PHI, not the parents. That's the new twist."

Hoping to shed some light on this confusing area, Ermer led a group of health care lawyers who put together a 50-state review of laws affecting minors (and included Guam, Puerto Rico and the Virgin Islands); their survey was released just after the privacy rule went into effect in 2003.

Because one key to compliance is to remain current with ever-changing laws, the group just completed a new version of the survey, which has been updated to reflect changes in laws and court rulings that affect minors' rights.

"The last thing you want to do is trip up over one of these highly controversial issues," warns Ermer. "Generally the parent is the legal representative of the minor, but the devil is in the details."

And although it is for informational purposes and not legal advice, the survey is especially useful in that it cites the relevant laws and court cases in each state that drive its policies on minors and disclosure.

According to the privacy rule, a parent, guardian, or other person in loco parentis (or court-appointed guardian) "with authority under local law" may make health care decisions about an unemancipated minor, and will be acting as the minor's personal representative.

A minor is defined as a person who is under the age of majority, and an unemancipated minor is a minor who has not exercised his or her right to independence from parental authority.

Except in the case of abortion services, the trend among states is to pass laws granting minors more control over health care decisions, rather than granting more control to their parents or guardians, Ermer says, a pattern evident since the civil rights era.

Survey Highlights Murky Areas

The survey highlights especially tricky areas in which the unemancipated minor is allowed to consent independently, but the provider can disclose information over the minor's objection, or without seeking approval for the disclosure.

Similarly, some states do not permit the provider to disclose information unless the minor consents to the release. On the survey these instances are highlighted under the words "disclosure advisory" or "warning."

It is also important to remember that while state laws apply, there are aspects of the privacy rule that still must be followed. The rule, for example, specifies an exception under which CEs are not to consider the parent or other individual to be the minor's personal representative, regardless of what the state law says.

The practical effect of this is to forbid the CE from disclosing information to the parent or guardian. This one exception is met when:

• The CE has a "reasonable belief' that the minor has been subjected to domestic violence, abuse, or neglect by such person, or that accepting the personal representative could endanger the minor; and
• The CE, "in the exercise of professional judgment," decides that it is not in the individual's best interest to treat such person as the individual's personal representative.

Some states allow a minor to have broad discretion in consenting to general treatment. Minors who are living away from home and "managing their own financial affairs" can consent to general medical and health services in Alabama, for example.

But even in the case of general medical care, there are exceptions, Ermer's survey shows. In South Carolina, a minor (aged 16 or older) can consent independently to general medical treatment. Yet, any physician who deems such care "necessary" may provide it to a minor of any age regardless of whether the minor or the parent approves.

The more typical practice is for states to pass laws that affect a handful of highly controversial or sensitive issues, rather than addressing general medical care.

"The laws do vary from state to state, particularly in alcohol and drug abuse and mental health services," Ermer points out.

It is probably unrealistic to expect a hospital compliance officer, health plan representative or physician to consult volumes of state laws every time they are faced with a minor (or his or her parent), to see if there is some special requirement. An easier method of being compliant is to know the types of treatment for which there may be state laws, and then refer to them when necessary.

According to Ermer's study, most often states have passed laws concerning minors receiving the following:

• contraceptive services;
• prenatal care;
• treatment of sexually transmitted diseases including HIV;
• alcohol/drug abuse treatment;
• mental health services; and
• abortion services.

States vary in how they address the treatments and services noted above. But the survey reveals some commonalities among the states concerning the following:

Age of majority: The age of majority is 18 in most states, but not all. It is age 19 in Alabama and Nebraska and 21 in Pennsylvania and Puerto Rico. Ages are also important in a variety of other situations, such as in the provision of mental health services (minors can consent at age 12 in California, Georgia, Idaho and Illinois; 14 in Delaware; 15 in Colorado and 16 in Kentucky).

Methods of emancipation: Many consider a court order, marriage, pregnancy or divorce to result in the minor reaching majority status or being "legally competent," as Ermer puts it. California and Vermont add military service to the list, while Iowa considers emancipation to occur following the conviction (as an adult) of a crime.

STD/HIV tests and treatment: Most states allow minors to consent independently. Some (Vermont and Virginia) require providers to give results to parents or guardians, but more are silent on this issue.

Abortion: Twenty-four states have laws on the books requiring parental consent before the service is performed, but in close to half the states the law is not enforced due to a successful court challenge. States that don't insist on parental consent tend to require notification, however. These include Colorado, Florida, Illinois, Iowa and Ohio.

Ermer offers the following tips for easier compliance with the rule and laws governing minors.

• Follow the correct law. Minors may cross state lines for treatment. Pay attention to the law in the place of treatment, not the law in the minor's home state or where the insurance carrier or other payer resides.
• Make time to comply with any requests from parents or legal guardians. Request that a parent or guardian seeking PHI put that request in writing, which will allow time for the matter to be researched.
• Contact the provider if there is any question about whether the parent is the personal representative of the minor, as he or she may not be acting. The physician would know if the parent has been involved in treatment decisions.
• Check with the local hospital, physician and health plan associations to find out if new laws have passed affecting minors, and if any court cases have been decided. If they don't track such matters, suggest they start.
• Seek out other resources. For help on issues related to contraception and pregnancy, for example, refer to the Guttmacher Institute, which provides information for each state, although it does not include citations of law.

Advertise With AIS

Privacy

Site Map