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In the last section, we discussed three concepts related to the client’s informed consent. These three concepts related to the client’s informed consent included: HIPAA requirements; readability; and comprehension.
In this section, we will examine three concepts that focus on the HIPAA guidelines related to minors. These three concepts related to HIPAA guidelines on minors include: autonomy; State Laws vs. HIPAA; and exemptions.
3 HIPAA Guidelines Related to Minors
♦ Guideline #1 - Autonomy
The first concept related to ethical HIPAA boundaries regarding minors is autonomy. Respective of individual State regulations, the age of autonomy may vary. For many States, the age of maturation is no earlier than 17 or 18. After the attainment of this age, a parent or guardian ceases to make decisions for the client, and the client becomes independent of the parent or guardian.
Of course, there are exceptions in the case of physical or mental handicaps, but in general, this is the norm. Once the client has reached an autonomous age, he or she also inherits the decision-making for the disclosure of medical and mental health records. Subsequent to this, the client’s parents or guardians no longer have the right to the client’s medical or mental health records without the client’s authorization.
However, the client may achieve autonomy through emancipation when he or she has become married, had a child, or prove to be a mature minor. Once the minor has been emancipated from his or her parent or guardian, they gain the same rights as a matured adult. However, this law is also relative to State regulations.
Joseph, age 16, had a pregnant girlfriend, Tammy. Deciding to take on a full-time job to pay for Tammy and their wedding, Joseph decided to become emancipated from his parents, who had been gaining access to his bank account and taking out money. Once he had become emancipated, Joseph became the sole decision-maker for his records. When his parents came to me and asked me to divulge what Joseph had confided in me about them, I refused, stating that he had become an independent and that they no longer had privilege to that information.
Think of your Joseph. Has he or she become autonomous? Would mitigating circumstances prompt you to suggest your client take steps to be emancipated?
♦ Guideline #2 - State Laws vs. HIPAA
The second concept related to ethical HIPAA boundaries regarding minors is State laws vs. HIPAA. In the case of minors, a State law almost always preempts HIPAA regulations regardless of whether they prohibit, mandate or allow discretion about a disclosure. (Read this next sentence slowly) While HIPAA generally allows preemption by state privacy laws only where they are "stricter," this is an area of almost total deference. (Read this next sentence slowly.)
However, if the State is not clear or silent on their policies towards disclosure of minor records, a licensed health care professional has discretion to provide or deny a parent with access to the minor’s health information, if doing so is consistent with state or other applicable law.
Joanna, age 14, had been living with her father for over two years because her mother, who maintained legal guardianship, was incarcerated for fraud. Joanna, prior to her move-in with her dad, had started to self-mutilate by cutting with a paper clip. Once her father had discovered this, he recommended her for treatment. Her mother, however, was released on probation and demanded the notes the therapist, Bonnie, had taken. The mother stated, "She’s my daughter, and I know he’s brainwashing her! I’m going to take her away from him, that bastard, he is turning her against me! He’ll never see her again!"
Bonnie’s State had no regulation regarding this type of situation, and Joanna did not want her mother in her life. Joanna stated, "She’s very controlling, and I think she might be the reason I started cutting. I can’t express myself in her house!" Because Joanna’s mother was the root cause of her self-mutilation, Bonnie decided not to disclose records to Joanna’s parents.
What is your State’s laws regarding the disclosure of a minor’s medical records to parents or guardians?
♦ Guideline #3 - Exemptions
In addition to autonomy and State laws vs. HIPAA, the third concept related to ethical HIPAA boundaries on minors is exemptions from State and HIPAA laws. If State and HIPAA laws both require that a parent be informed of their child’s session notes, there are certain circumstances that bypass both regulations. Most especially, "if a provider has a ‘reasonable belief’ that a child has been, or may be, subject to abuse or neglect, or that providing information to a parent or personal representative could endanger the minor, the provider may choose not to disclose."
Obviously, this would not benefit the minor if his or her abuser had access to delicate files. Also, a provider may withhold information from a parent or personal representative if ‘in the exercise of professional judgment,’ it is decided that ‘it is not in the best interest of the individual to treat the person as the individual’s personal representative.’" Much like Bonnie’s case discussed earlier, the minor’s interests must always be at the forefront during a decision being made about the disclosure of notes. If a parent or guardian pose an imminent or potential threat to the client, it is ethically acceptable to deny them rights to the client’s records.
Think of your minor client. Does his or her guardian or parent pose a threat? Would it be beneficial for the client if this parent or guardian does not have access to medical or mental health records?
In this section, we discussed three concepts that focus on the HIPAA guidelines related to minors. These three concepts related to HIPAA guidelines on minors include: autonomy; State Law vs. HIPAA; and exemptions.
In the next section, we will examine three risks in which ethical boundaries could be broken due to the sharing of HIPAA approved information on the internet. These risks for boundary breaking due to the sharing of HIPAA approved information on the internet include: nationwide database; hackers; and errors in correspondence.
Emancipation Manual Questions and Answers about
Emancipation for Teenagers
- Legal Services for Children. (2014). Emancipation Manual Questions and Answers about Emancipation for Teenagers.
QUESTION 4 What are three concepts that focus on the HIPAA guidelines related to minors? To select and enter your answer go to Test.