HIPAA Privacy Rules Affecting Minor Children

Most health care providers are familiar with the privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. However, the rules regarding when and to whom medical professionals are allowed to disclose patient information can be confusing and subjective, especially as they apply to minors.

Under HIPAA, a patient’s personal representative adopts the same rights as the patient in regards to accessing and controlling medical information. In some cases, the personal representative relationship must be created, such as through a power of attorney or court appointment of a guardian.

Parents typically act as their minor child’s personal representative, in which case they have the right to access his or her medical records. Certain exceptions to this right include the following:

  • When state laws permit a minor to undergo certain medical treatment without a parent’s consent — such as mental health care, STD and HIV testing, pregnancy testing, and access to birth control and abortion in some states — the minor retains control over the information about his or her own treatment.
  • When the court authorizes a person other than a parent — such as a guardian or the minor him or herself — to make medical decisions for an underage patient, that person controls the information.
  • When the parent consents to a confidential relationship between the child and the health care provider — such as for counseling services — the parent rescinds his or her right to access the information without the child’s consent.

When the parent is the personal representative of the child, the health care provider may withhold access to information from the parent in the following situations:

  • If the medical care provider has a reasonable belief that the child has been or may be subject to domestic violence, abuse or neglect or that disclosure could otherwise endanger the child.
  • If the medical care provider exercises professional judgment to decide that treating the parent as a personal representative of the child is not in the child’s best interests.

HIPAA privacy rules apply only to health information — not to consent for treatment. However, other New Jersey or New York laws may be applicable to the consent aspect of minors’ medical treatment.

Medical professionals and entities with questions about HIPAA compliance should discuss their concerns with an attorney who can analyze their protocol and procedures.

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Posted in: Compliance