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Please Don't Tell My Parents: Balancing the Rights of the Minor Patient, Parents, and HIPAA Obligations of Physicians

February 16, 2018

By Berryl Thompson-Broussard, J.D., LL.M.


Please Don't Tell My Parents: Balancing the Rights of the Minor Patient, Parents, and HIPAA Obligations of Physicians

Family practitioners often see patients of all ages, from newborn to and through adulthood. Many physicians are becoming faced with requests from their minor, yet maturing patients, that their health information not be disclosed to their parents. In light of the significant penalties that are associated with violations by covered entities of HIPAA's privacy and security regulations coupled with the Office for Civil Rights' recent push to enforce health care providers' compliance with HIPAA regulations, many physicians are wondering how their responsibilities to keep the minor patient's health information private and confidential under HPAA apply when parents of minor patients seek protected health information.

The general HIPAA privacy provisions regarding use and disclosure of protected health information ("PHI") permit a health care provider to disclose PHI of an unemancipated minor to a parent, guardian, or other person acting in loco parenits, when they are deemed a "personal representative" of the minor patient. A parent, guardian, or other person acting in loco parenits will be deemed a "personal representative" of the minor patient, if, under applicable law, such person has authority to act on behalf of the minor patient in making decisions related to health care. Although this seems pretty straightforward in light of Louisiana's law that allows a parent to consent to surgical or medical treatment for his/her minor child (La. R.S. 40:1299.53), Louisiana's Minor Consent Law specifically permits a minor, regardless of age, to consent to the provision of medical or surgical care, or services provided by a Louisiana licensed physician, without the consent of the parent, and such consent shall be binding as if the minor has achieved his majority. (La. R.S. 40:1095).

HIPAA specifies that a parent may not be treated as a "personal representative" of the minor patient if the child consents to the health care service and the minor has not specifically requested that the parent be treated as the personal representative; or if the minor may lawfully obtain such health service without consent of parent, and consents to such health care service; or the parent assents to an agreement of confidentiality between the provider and the minor with respect to such health care service. As such, parents in Louisiana may not be considered "personal representatives" for purposes of uses or disclosures under HIPAA. However, HIPAA specifically permits a physician to disclose, or provide access to a minor patient's PHI, if, and to the extent, the physician is permitted to do so under an applicable provision of State law.

Under Louisiana's Minor's Consent Law, the treating physician is also given the discretion to determine whether to disclose or withhold PHI of a minor patient to the parent, without the need of the minor patient's consent and over the objection of the minor patient. The same holds true when an unemancipated minor presents to a hospital. Therefore, because the Minor's Consent Law permits, but does not obligate, the physician to disclose PHI of the minor patient to the parent, the treating physician is permitted to disclose or provide access to such PHI to, or to withhold such PHI from, the parents without violating the HIPAA privacy regulations.

In making his/her decision to disclose the minor patient's PHI to the parent, the physician should take into consideration whether the minor patient has been or may be subjected to domestic violence, abuse, or neglect by the parent; or whether disclosing PHI of the minor patient to the parent could endanger the minor patient; and in the exercise of professional judgment, whether such disclosure is not in the best interests of the minor patient. If any of these considerations are answered in the affirmative, the physician should refrain from making the disclosure.

Berryl Thompson-Broussard, J.D., LL.M. is an attorney at Gachassin Law Firm, which is dedicated to the representation and counseling of healthcare providers.

This article is offered only for general informational and educational purposes. It is not intended to be offered as and does not constitute legal advice or legal opinions.

 

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