When is a child not a child for the purpose of access to health records?

by Sands Anderson PC
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Healthcare providers are accustomed to adult involvement in the medical care of most “unemancipated” minors – minors who are not legally independent from their parents. Access to the minor’s records and/or medical information often goes hand in hand with a parent’s involvement in that care.  However, there are a number of situations in which a parent may not be authorized to have access to the records of an unemancipated minor child.  While providers should consult with their risk management/compliance personnel when any such situation arises, a brief look at a few of the more common situations where questions about parental access arise may help a provider avoid problems in the future.

Psychotherapy notes:

As an initial matter, remember that psychotherapy notes are treated differently from all other medical records and are not subject to a general right of access on behalf of the child or the child’s parents. Providers who have psychotherapy notes may want to become familiar with the special rules that apply to those notes but the discussion that follows does not apply to psychotherapy notes.

A parent’s general right of access:

Under Virginia law a parent is generally afforded a right of access to a minor child’s health records. Virginia Code section 20-124.6 provides that neither parent, regardless of whether they have custody of a minor child, shall be denied access to the academic or health records of that parent’s minor child except in certain specific situations, which will be discussed shortly.

The Health Insurance Portability and Accountability Act (HIPAA), for those providers to whom it applies, has similar, although not identical provisions. HIPAA discusses the rights of a “personal representative,” rather than rights particular to a parent.  Section 164.502(g)(1) of HIPAA provides that the personal representative of any patient, including an unemancipated minor, is generally afforded the same rights as the patient regarding access to the patient’s  health records, provided that the personal representative has authority to act on behalf of that patient in making decisions related to health care.  Whether a parent qualifies as the “personal representative,” of a minor child is determined by state law.

For every rule there is an exception, and both HIPAA and the Commonwealth of Virginia have exceptions to a parent/personal representative’s general right of access to their minor child’s health records.

When a minor consents to their own care:

HIPAA provides that when a minor has consented to their own care and no other consent is required, if the minor has not requested that a parent or other person be treated as their personal representative, that parent or other individual may not be provided access. This is true even if a parent has also consented to that care along with the minor child.  HIPAA further provides that when a minor may lawfully obtain health care without the consent of a parent or guardian, a parent or other personal representative may not be authorized access to the minor’s records.  HIPAA looks to state law to determine those circumstances where a minor is authorized to consent to their own care.

In at least four situations not requiring an emergency, parental unavailability, or some other action by a court, Virginia law allows a child to consent to their own care. Pursuant to Virginia Code section 54.1-2969, a child “shall be deemed an adult” for purposes of consenting to: 1) services necessary to diagnose and/or treat venereal disease or any infectious or contagious disease that must be reported as provided by the Virginia Board of Health; 2) services required in the case of birth control, pregnancy, or family planning but with limitations applicable to consent for an abortion; 3) services needed in the case of outpatient care, treatment or rehabilitation for substance abuse; and, 4) services needed in the case of outpatient care, treatment or rehabilitation for mental illness or emotional disturbance.  In addition to having the right to consent to such treatment, Virginia provides that a child shall also be deemed an adult for the purpose of deciding to whom access and/or disclosure of the child’s records may be made.  Thus, when a child has consented to treatment under any of these four scenarios, the child has the right to determine whether their parent(s) may have access to their records and the parent may not have access unless authorized by the child.

There are two other provisions of HIPAA about which providers should be aware. First, HIPAA provides that if a parent or other person acting on behalf of the minor consents to a confidentiality agreement between the provider and the minor, access by the parent may not be permitted.  This type of situation sometimes arises when a child has indicated that he or she will not speak freely with a provider if a parent will have access to the record.  HIPAA does not require a particular form to this confidentiality agreement, but a signed document is a good idea if a provider feels such confidentiality is important to the care and treatment relationship with the minor.  Second, if state law allows or requires access by a parent, a provider may grant access, but if state law denies access to the parent, a provider must deny that access.  State law, for purposes of these provisions, includes cases decided by Virginia courts.

When someone other than a parent consents to care:

There are a number of circumstances where Virginia law allows individuals other than the parent of a child to make decisions regarding surgical or medical treatment for that child. In circumstances where a child has been removed from the custody of a parent or a parent cannot be contacted with the promptness required by the situation, certain courts, individuals associated with social services, correctional, and/or other institutions, individuals standing in loco parentis, and/or conservators or guardians of a child may be permitted to provide consent, depending upon the circumstances. Depending upon the circumstances, a parent may or may not have a right of access to records regarding this care.  It is important for providers in such situations to determine under what authority someone other than a parent consented to care and the implications of that authority for a parent’s right of access to records.

When access is not in the minor’s best interest:

Virginia law and HIPAA recognize the authority of a provider to limit access to records, to a child or their parents, where the provider determines that allowing access may result in harm to the child.

Pursuant to section 164.502(g)(5) of HIPAA, a provider may elect not to treat a parent or other person as the “personal representative” of a child (or other patient) if the provider has the reasonable belief that the child has been or may be subject to domestic violence, abuse, or neglect by the parent or other person; treating that parent or person as the personal representative could endanger the child; and, the provider, “in the exercise of professional judgment,” decides that it is not in the best interest of the individual to treat the person as the individual’s personal representative.

Virginia Code section 32.1-127.1:03 provides that “access to an individual’s health records shall not be furnished to such individual or anyone authorized to act on the individual’s behalf when the individual’s treating physician or the individual’s treating clinical psychologist has made a part of the individual’s record a written statement that, in the exercise of his professional judgment, the furnishing to or review by the individual of such health records would be reasonably likely to endanger the life or physical safety of the individual or another person, or that such health record makes reference to a person other than a health care provider and the access requested would be reasonably likely to cause substantial harm to such referenced person.” There are additional notice requirements in section 32.1-127.1:03 regarding a right to have the records reviewed by an independent provider who may overturn the provider’s determination that access could result in harm.

Domestic relations cases:

Access to a minor child’s records frequently arises in the context of a domestic relations case. As discussed above, the Code of Virginia generally protects the right of access of parents to the records of their minor child, without regard to whether the parent has custody of the child, unless otherwise ordered by a court. However, as with section 32.1-127.1:03, above, Virginia Code section 20.1-126.5(B) provides that access may be denied, “where a provider has made a part of the minor’s record a written statement that, in the exercise of their professional judgment, the furnishing to or review by the requesting parent of such health records would be reasonably likely to cause substantial harm to the minor or another person.”  The notice requirements about review by an independent provider, discussed above in regard to section 32.1-127.1:03, must be met.  In situations where a provider does not necessarily believe parental access will result in substantial harm to the child, the provider may nonetheless petition the court to deny access, “for good cause shown,” pursuant to Virginia Code section 20.1-126.5(A).  As discussed above, HIPAA requires denial of access when a Court has so ordered.

These are just a few of the more common situations providers encounter regarding access to a minor’s record. When in doubt, providers should consult with risk management and/or their compliance personnel.  Remember that when access is required to be provided, both HIPAA and Virginia law place deadlines by which time such access must be provided, so providers should not delay in seeking guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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