We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

We previously addressed who can determine treatment for the minor patient (addressed her in Part 1). We now move to confidentiality / records access issues for the minor patient in Part 2.

1. Confidentiality issues and access to records.

Medical confidentiality for minors is a unique situation because the person seeking the Protected Health Information (PHI) is the same person who is authorizing the release.

The rights of parents, guardians and those acting in loco parentis to have access to a minor patient’s PHI are covered in the HIPAA section on the rights of “personal representatives”, those authorized to make health care decisions for another person.

As a general rule, a covered entity must accord a personal representative the same rights they would accord to the patient. In terms of minors, this means that the rights children would have to control their PHI (if they were adults) is controllable by those adults charged with their care.

Usually, there is no conflict in these interests. But there can be situations in which the right of a parent/guardian to raise a child without undue interference and a minor’s right to privacy are opposed.

In such settings remember that the duty of a parent/guardian to care for the child’s health does not render that child to chattel status. A minor patient has as full a right to the confidentiality of his PHI as an adult and so a practitioner must make all required efforts to ensure that it is only released to those authorized to receive it.

1. A 15 year old patient of mine recently told me that he is gay. He also told me that he is still a virgin and does not want to be sexually active until he is older. I believe him – he is a very sensible kid – so I don’t have any health concerns about his conduct at this point, although I did give him a basic talk about safe sex for when the time comes. He also told me that he does not intend to come out to his parents until he is old enough to leave for college if they reject him. He asked me to say nothing to them and I have maintained his confidence as I believe that I am bound to do. The problem is that the mom just requested a copy of my records – which she has never done before, which makes me think that she suspects that something is up – and those records include his statement about his sexual orientation and my cautionary talk with him about safe practices. Now what?

Under HIPAA, a covered entity may deny a parent/guardian access to a minor’s records if the decision is made by “a licensed health care professional in the exercise of professional judgment.”

You have concluded that there no health issues about this matter that his parents need to know about. If you believe that it is in the best interests of your patient to not reveal this matter to his parents until a time of his choosing, then HIPAA allows you to redact your records on this point.

Although this case fortunately does not rise to the level of you being concerned that your patient may be in danger if his parents learn he is gay, if a covered entity has a reasonable belief that the personal representative may be harming the patient (or that even treating that individual as the personal representative is not in the patient’s best interests), the covered entity may, under HIPAA, refuse to provide the records. This is far broader than mere redaction of the records.

Since your situation falls short of that, your next step should be to determine if there is any state law that contravenes what HIPAA permits. Your state may have laws that grant more access rights to parents. This is a point that your state medical board can clarify. Make your inquiry on this in writing because you want an answer in writing, since reliance on what your state board tells you is a defense against further actions.

You are probably correct this family is mutually dancing around the issue, working through you to avoid talking to each other.

This could provoke the mother to make a complaint about you to the state medical board or to actually sue for the release of the records. This is why you want a statement of the pertinent law from a source that you are statutorily permitted to rely on.

In a practical sense, the gap created by a redaction is revelation of something having been previously present. You would therefore be best off explaining to your sensible young patient that the redaction will itself open the matter and offering your own help or referral to a counselor for the next steps in his discussions with his family.

2. I have a 16 year old patient in my family practice whom I just treated for a scalp laceration. He was bragging about how much he drinks until he just falls down and that that is how he was injured. I think that his parents, who strike me as clueless, should be aware of his medically dangerous conduct. However, he says that he just wants treatment when he has problems after drinking and to not tell his parents. He even offered to pay in cash so it won’t show up on their insurance. Do I have to follow what he wants in this regard?

As discussed earlier, most states allow minors to consent on their own for substance abuse treatment and empower the minor to shield that information. However, that is not what your patient is seeking – he just wants to be patched up after drinking. He’s not interested in substance abuse treatment.

You may follow your professional judgment and reveal this situation to his parents.

However, while we are in this area let’s consider what the situation would be if he wanted to get counseling or rehabilitation without his parents knowing about it.

In that situation you would likely have some discretion about notification under the same law in your state that permits him to consent to that treatment on his own. This set-off will be looked at in more detail below.

3. Our CMHC accepts referrals from the guidance counselor at the local high school if a student requests out-patient mental health services. Most of these kids just want to talk out a temporary issue but several have more serious problems, such as bi-polar disorder, that really warrant in-depth treatment. However, they all say that they don’t want their parents notified. Through this program they do agree to me informing the counselor at the school but I feel hamstrung in trying to get them the care they need when I cannot discuss their case with their parents.

HIPAA’s stance on this matter – and one not limited to mental health care – is widely protective of the minor patient’s confidentiality. The regulations permit them to exercise control over their own records if, under applicable state law, they obtained or could have obtained the health care for which the records are being sought without parental consent. That second qualifier is important because it means that even if the parents consented to the treatment, if the minor could have gotten it without that consent the regulation still applies.

This is the usual stance taken in state laws (and supported by public policy) that the state created the access law to make it easier for minors to agree to treatment in the first place, a policy goal that would be undone by then not allowing them to keep matters confidential. For example, the statute from Michigan says: “Under this act, a minor’s parent, guardian, or person acting in loco parentis has the right to review and obtain a copy of the minor’s medical record, unless the minor lawfully obtained health care without the consent or notification of a parent, guardian, or other person acting in loco parentis, in which case the minor has the exclusive right to exercise the rights of a patient under this act with respect to those medical records relating to that care.”

However, these statutes that enable minors to obtain care without involving their parents/guardians do not exist in a fantasy world in which all minors actually have solid mature judgment.

Most states do allow the practitioner to exercise their clinical judgment as to parental notification.

For example, in Illinois, although the general rule is that a minor 12 years of age or older may consent to outpatient mental health services which have to be kept confidential unless the minor consents, there is an exception under which the facility director can inform the parent/guardian if they believe that “such disclosure is necessary.” The minor must be informed of that disclosure but cannot prevent it.

It is likely a similar exception in your state will allow you or the head of the clinic to make notifications you deem necessary.

However, bear in mind that your state may have independent confidentiality rules regarding the release of mental health information.

This could place you in a situation where the laws conflict. That is not something that you want to be parsing out on your own. These situations are ones in which you reach for the legal department or Risk Management at your CMHC or your state medical board..

4. Our staff is being run ragged by the divorced parents of one of our pediatric oncology patients. The mom, who has remained in town and has physical and legal custody, gave a written statement to the front desk that the dad is not to be involved in the child’s care or to be in communication with the office about it and she specifically rescinded the earlier HIPAA authorization that allowed him access to the child’s PHI. She also gave us a copy of the divorce decree that indicates her custodial status. Now, however, the dad, who moved away, is calling over and over to demand a copy of the child’s records and the mom is calling repeatedly to insist that we give him nothing. We have sympathy for his concern for his child fighting cancer but we are not going to embroil ourselves in a confidentiality violation. Now what?

Ironically, if the parents were not yet divorced, this would be simple – the mother’s choice under the rights granted to her in a separation agreement or Order would govern. But now that they are divorced, it may not be.

Many states have enacted separate legislation that ensures divorced parents full access to their children’s medical records. This access is outside the issue of whether they can have actual control over the child’s medical care, which is what HIPAA looks to in the “personal representative” designation.

The Texas Supreme Court actually found it necessary to incredulously note the legislature’s apparent intention to give divorced parents a greater right of access to their children’s medical records than separated parents who remained married.

The situation you are facing will be one that resolves to whether there is a statute of that type in your state. This is a question for your state medical board and until it is answered tell both parents that no records will be issued.

5. I am a neurologist of a child who is the plaintiff in a medical malpractice lawsuit over earlier care by a neurosurgeon. I am not a party in the case – the child came to me after the lawsuit was already in progress. I just got a letter from the attorney handling that case describing herself as the “personal representative” of the child and requesting a copy of my records. There was no authorization attached so I declined. Was I correct to do so?

Yes.

While the lawyer is indeed a representative of the client – in this case, actually the parent for the child – that is not what “personal representative” means under HIPAA. Here, the lawyer has no say over the medical care the child receives. The parent has to execute a HIPAA release and comply with any additional requirements your state may have and then you can send the records.

In summary: In general, records access for minors are solely in the control of parents/guardians. It is essential for physicians treating minors to acquaint themselves with state laws as well as HIPAA on these matters.

[Medical Justice notes: Sooner or later, most doctors will take care of a child whose parents are locked in battle with each other – either separated or divorced. Their child will be a pawn in this battle. Perhaps the father is trying to obtain billing records to detail how much the mother is actually spending -or lying about spending – on the child’s healthcare. Trying to parse out who has what rights is not easy. If both sides are lawyered up, one simple way to address the matter is to have each lawyer (for Mom and for Dad) be aware of the potential dispute over records or treatment. They will then duke it out between themselves, and ultimately you will get a judge-approved document. Many times it won’t require such effort. But, when people are fighting such battles, you do NOT want to be caught in the middle.]