How does HIPAA apply to minor patients?

Minors have a right to privacy and confidentiality regarding their health information. Safeguarding their protected health information (PHI) allows minors to seek healthcare without fear of judgment or negative consequences.

HIPAA and PHI

HIPAA defines PHI as any individually identifiable health information held or transmitted by a covered entity (such as healthcare providers, health plans, or healthcare clearinghouses). This information relates to an individual's past, present, or future physical or mental health condition, provision of healthcare, or payment for healthcare. It sets in place how this data can be collected, used, and disposed of in order to protect patients and research participants. 

Related: Understanding and implementing HIPAA rules

Parental consent and disclosure of patient data 

Under HIPAA's Privacy Rule, a parent generally has the right to access their minor child's medical records and act as the child's personal representative. Unless specific exceptions apply, healthcare providers should generally obtain consent from a parent before sharing a minor's health information with anyone. However, three exceptions exist where the parent would not be considered the child's personal representative under the Privacy Rule. 

Related: Permitted use and disclosure of protected health information (PHI) under HIPAA

Minor control of PHI

The amount of autonomy minors have over their treatment and PHI depends on several factors. A central one is the age of consent within the jurisdiction the minor is being treated. In many jurisdictions, minors below a certain age (usually 18 years old) are legally unable to consent to medical treatments without parental or guardian involvement. However, some jurisdictions may have specific laws that grant certain healthcare rights and decision-making abilities to minors, even below the age of consent, based on their maturity level.

Certain jurisdictions allow minors to consent to specific healthcare services without parental involvement. These services often include reproductive health, mental health, and substance abuse treatment. The intent is to ensure minors have access to necessary care and support while considering their privacy and confidentiality. This ties into a minor's right to confidential communication with their healthcare providers, meaning that their medical information should be kept private and not shared with parents or guardians without the minor's consent.

If a minor has been legally emancipated, meaning they have obtained legal independence from their parents or guardians, they can generally consent to medical treatment independently. Emancipation typically requires a court process or specific legal status. 

Steps to verify parental or legal guardian's authority

1. Obtain identification: Healthcare providers should request identification from the individual claiming to be the parent or legal guardian. Acceptable forms of identification may include a driver's license, passport, or any other government-issued identification document.
2. Documentation of parental or guardianship status: Providers should request and maintain documentation establishing the individual's parental or legal guardian status. This may include a birth certificate, court order, custody agreement, or any other legal document proving their relationship with the minor.
3. Request consent or authorization: Healthcare providers should have the parent or legal guardian sign a consent or authorization form explicitly granting permission to access the minor's health information. This form should clearly outline the purpose of the disclosure and specify the duration and scope of the consent.
4. Review legal documentation: Providers should carefully review any legal documentation provided by the parent or guardian, such as custody orders or guardianship papers, to ensure the information aligns with the requested access.
5. Maintain proper documentation: Healthcare providers should keep records of the steps taken to verify the authority of the parent or guardian. This documentation should include copies of identification, consent forms, and relevant legal documents.
6. Follow state laws: In addition to HIPAA, healthcare providers should be aware of any applicable state laws that may impact parental or guardian access to a minor's health information. They should ensure their verification process aligns with HIPAA and specific state regulations.

Minor PHI in cases of suspected abuse or neglect

HIPAA permits healthcare providers to disclose a minor's health information to the appropriate authorities, such as child protective services or law enforcement, when they have a reasonable belief that the minor is a victim of child abuse or neglect. This disclosure is allowed without the consent or authorization of the parent or guardian.

Protection is also granted to healthcare providers who make good-faith disclosures of a minor's health information in cases of suspected child abuse or neglect. In this disclosure, healthcare providers must adhere to the minimum necessary standard. They should only disclose health information that fulfills reporting obligations and protects the welfare of the minor. 

Disclosures without parental consent

There are three exceptions where the parent would not be considered the child's personal representative under the Privacy Rule:

• When the minor is capable of providing consent for their own healthcare and state or other applicable laws do not require parental consent.
• When the minor receives healthcare under the direction of a court or a court-appointed person. 
• When the parent and the minor agree to establish a confidential relationship with the healthcare provider.

In these exceptional situations, the parent's access to the minor's medical records may be limited. However, note that state or other applicable laws may grant parental access even in these circumstances, or they may prohibit it. If the law is silent on parental access, the healthcare provider can use their professional judgment, within the boundaries of the law, to decide whether to grant or deny parental access to the minor's medical information.

Related: HIPAA Compliant Email: The Definitive Guide