Should your child have privacy when the subject is sex, drugs or medical records?
As a parent, it’s always difficult to walk that fine line between privacy and responsibility as your kids get older. Healthcare providers must strike a balance between confidentiality and responsibility to parent and patient. And privacy and confidentiality take on specific meanings in healthcare.
Privacy is defined by the Center for Adolescent Health Care and the Law as the ability of the individual to maintain information in a protected way. Confidentiality in healthcare is the obligation of the provider not to disclose information.
A minor’s confidentiality is protected under the Family Educational Rights and Privacy Act (FERPA), Title X and Health Insurance Portability and Accountability Act (HIPAA). Enacted in 1974, FERPA gives parents access to a child’s education records, an opportunity to seek to have the records amended and some control over the disclosure of information from the records. Since its inception in 1970, the Title X program has been the only federal grant program dedicated solely to providing individuals with comprehensive family planning and related preventive health services. As a publicly-funded program, Title X offers patients protection by requiring that programs are voluntary and confidential.
HIPAA, enacted in 1996, protects the privacy of individuals’ health information, medical records and embodies important protections for minors, along with a significant degree of deference to other laws (both state and federal) and to the judgment of providers.
Under HIPAA, a parent or legal guardian is considered a personal representative of the minor and is entitled to access the minor’s personal health index. There are, however, three situations in which a parent does not have the automatic right to access a minor’s medical records.
* The minor has a legal right to consent. This will vary based on state laws. A physician, however, can make the clinical decision to inform a parent.
* The minor can legally receive care without parental consent.
* The parent agrees to an agreement of confidentiality between the minor and provider.
Providers who believe that particular patients might hurt themselves or someone else have a legal obligation to notify law enforcement authorities, but they can also inform family members if they feel family members may be reasonably able to prevent or lessen the risk of harm. A provider’s “duty to warn” generally is derived from and defined by standards of ethical conduct and state laws. HIPAA further permits a covered provider to notify a patient’s family members of a serious and imminent threat to the health or safety of the patient or others if those family members are in a position to lessen or avert the threat.
Over the past two decades, the courts have struggled with the minor’s right to privacy against the value of parental guidance. Adolescent health experts agree that adolescents will not seek care unless they are assured of confidential services. Experts also agree that it’s appropriate for the minor to exercise the privacy rights under the HIPAA regulation. Communication can seriously be compromised and the privacy of an adolescent may even deter the individual from seeking further treatment. Being aware of the confidential services that your adolescent is entitled to will help your family better understand healthcare rights and help your provider deliver appropriate care.
Providers have a window of opportunity to provide primary prevention strategies that may reduce adolescent health risk behaviors, possibly even reduce the initiation of high-risk sexual behavior, during an office visit. Creative, age-appropriate strategies include an adolescent-friendly exam room with brochures, educational videos and/or computer programs. Find out how your child’s provider handles these sensitive conversations.
Every state has laws that allow minors to give consent for some kinds of healthcare — including emergency, general health, contraceptive, pregnancy-related, HIV or other sexually transmitted diseases (STD), substance abuse and mental healthcare. Every state also has laws that allow minors to give consent for care if they are emancipated, mature, living apart from their parents, pregnant, parents themselves and high school graduates or above a certain age. Many of these laws have been in place for several decades.
Example: A 16-year-old female comes into a primary care office for a routine well visit, expressing concern that she may have an STD. As a minor, she would be able to consent for this service in every state, although the age limit varies. With Title X and possibly state law, she would be permitted to give her own consent for family planning services.
Should her parents at some point want access to her information and records, they would be entitled to information about most of the general care she has received — minor acute problems, immunizations, sports physicals — but whether they could access information about the STD screening and family planning would depend on state or other laws. The laws may prohibit disclosure without the minor’s permission or give the provider discretion over further access of information. If the laws are silent or unclear, the rule gives the provider and other covered entities discretion on whether parents should have access to the medical records.
The most challenging issues in a private practice arise with respect to billing and third-party reimbursement. If the office has routinely sent bills home for the minor’s care, some diligence will be required to ensure that information on the bill does not inadvertently disclose confidential information. The HIPPA rule may minimize these risks if minors request restrictions on disclosure or confidential communications. Ultimately, however, effective implementation of confidential care for minors in a private practice depends on cooperation of the minor, the provider, and any health plan or insurer involved.
Experts suggest having the adolescent patient, the parents and the provider discuss “ground rules” at a routine healthcare visit. Consider initiating this conversation at your child’s next well visit. You may all agree that normal details will not be shared with you unless your kids are not following the prescribed treatment plan or seem at risk of harming themselves or others. Some parents will not allow this degree of privacy. In this situation, it’s imperative that the provider speak to the parent/guardian alone to discuss the importance of confidentiality and building a rapport with the adolescent.
Cheri Barber, DNP, RN, CRNP, is Past President of NAPNAP and the Coordinator of the PNP Program at UMKC. She is also a PPCP at Pediatric Medical Associates.