Part 2, Chapter 7: Manual Exhibit 2-7-Q
Policy and Procedure for Disclosure of Protected Health
Information of Un-emancipated Minors
- PURPOSE. To publish Indian Health Service (IHS) policy and procedure for disclosing and providing access to protected health information (PHI) of un-emancipated minors.
- Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, 45 Code of Federal Regulations (CFR) Part 164.502(g)
- Privacy Act of 1974, as amended, 5 United States Code (U.S.C.) § 552a
- Health and Human Services (HHS) Privacy Act Regulations, 45 CFR Part 5b; and
- Confidentiality of Alcohol and Drug Abuse Patient Records, 42 CFR Part 2.
- POLICY. The Health Information Management (HIM) Director or designee shall he responsible for determining whether or not to release the PHI of an un-emancipated minor to the minor or to the minor's parent or legal guardian. In all cases, whether a patient is a minor and whether a minor is emancipated shall be determined by applicable law. If it is unclear which law applies, consult the Office of General Counsel (OGC).
- PROCEDURES. The following procedures will govern how health information of un-emancipated minors will be disclosed:
- Requests By Un-emancipated Minors.
- A minor who requests access to his or her health information shall, at the time of the request, designate a personal representative in writing (e.g., physician or other health representative or responsible person), who would be willing to review the record and inform the minor of its contents.
- Upon receipt of request and designation of a personal representative, the Responsible Department Official (RDO) (i.e., HIM Director) reviews the request to determine whether direct access will have an adverse effect on the minor. The minor will be granted direct access to his or her health information if the RDO determines that direct access is not likely to have an adverse effect on the minor.
- If the RDO believes he or she is not qualified to determine, or has determined, that access by the minor is likely to have an adverse effect on the minor, the record will be sent to the designated personal representative. The minor will be informed in writing that the record has been sent. The minor will be allowed access to his or her record consistent with a determination by the RDO of the manner of disclosure, if any, that would limit any likely adverse effect on the minor.
- Requests by a Parent, Legal Guardian, or Individual Acting in Loco Parentis.
- At the time of request, the parent, legal guardian, or individual acting in loco parentis, shall designate in writing a health professional (other than a family member) to whom any records will be sent.
- If the disclosure of the record would constitute an invasion of the minor’s privacy, that fact will be brought to the attention of the designated health professional who will be asked to consider the effect that disclosure of the record to the parent, legal guardian, or individual acting in loco parentis would have on the minor in determining whether the record should be made available to the parent, legal guardian, or individual acting in loco parentis.
- In cases in which the minor’s record is sent to the designated health professional, the requestor will be notified of this action, and reasonable efforts will be made to inform the minor.
- Where the state law for where the treatment facility is located prohibits disclosure of a minor’s PHI to the parent, legal guardian, or individual acting in loco parentis of the minor, the IHS shall not disclose the minor’s PHI to the parent, guardian, or individual acting in loco parentis.
- Where the state law for where the treatment facility is located permits or requires disclosure of a minor’s PHI to the parent, legal guardian, or individual acting in loco parentis of the minor, or there is no state law, the IHS may disclose the minor’s PHI to the parent or legal guardian, or individual acting in loco parentis following the above procedures, unless:
- The parent, legal guardian, or individual acting in loco parentis lacks authority to act on behalf of the minor (for example, where parental rights have been terminated).
- A physician or health professional determines that disclosure of the PHI to the parent, legal guardian, or individual acting in loco parentis would constitute an unwarranted invasion of the minor's privacy (in writing), and there is a reasonable belief that such disclosure might endanger or cause harm to the minor, or such disclosure would otherwise not be in the best interest of the minor.
- The minor has consented to a health care service for which parental consent is not required under the state law for which the treatment is provided, and the minor has not requested that the parent, legal guardian, or individual acting in loco parentis be treated as his or her personal representative.
- The parent, legal guardian, or individual acting in loco parentis agrees to an agreement of confidentiality between the IHS and the minor. Such an agreement should be documented in the minor's medical record.
- The Privacy Act otherwise prohibits the disclosure.
- Requests by Other Third Parties.
- Subpoena/Court Order. Upon receipt of a subpoena/court order for a minor's medical record, the Area HIM Consultant must be consulted before any release is made.
- Law Enforcement. Requests from law enforcement will be accomplished pursuant to the requirements of the law enforcement exception contained in the Privacy Act, 5 U.S.C. § 552a (b)(7) and the HIPAA Privacy Rule, 45 CFR §164.512 (f)(1)(ii)(C).
- Law Firms or Insurance Companies. A signed authorization by the minor patient must accompany the request. An authorization from the parent or legal guardian will not be accepted. If the parent or legal guardian wishes to disclose medical records to a third party (e.g., attorney or insurance company), then the parent or legal guardian must request access to the minor's medical record following the procedures in section B, above. Upon the receipt of the minor's medical record, the parent or legal guardian may disclose it to the third party. Records of alcohol and drug abuse treatment are covered by 42 CFR Part 2.
- Medical Examiners. Medical Examiners may access relevant health information about deceased minors necessary for the performance of their duties as required by law.
- Content and Documentation of Requests for Access or Disclosure.
- All requests must contain the following:
- Signature of the minor patient and/or the parent or legal guardian, as appropriate;
- Date of signature;
- Description of information requested; and
- Purpose of the disclosure.
Note: Although a state law may permit a parent or legal guardian to have access to an un-emancipated minor’s medical record, the Privacy Act prohibits a parent or legal guardian to authorize a disclosure by the IHS of an un-emancipated minor’s medical record to a third party. (See Section C(3) above.)
- The authorization (Form IHS-810) or written request will be filed in the minor patient’s medical record. See Manual Exhibit 2-7-D, “Policy and Procedures for Authorization for Use or Disclosure of Protected Health Information Pursuant to Authorization or Valid Written Request.”
- The information released will be documented in the accounting of disclosure log either manually (Form IHS-505) or electronically utilizing the Release of Information (ROI) software application of the Resource and Patient Management System (RPMS). See Manual Exhibit 2-7-B. “Policy and Procedures for Matters Related to Accountings of Disclosures of Protected Health Information.”
- All requests for notification or access to a minor’s record will comply with the Manual Exhibit 2-7-R, “Policy and Procedures on Verification of Identity Prior to Disclosure of Protected Health Information.”
- Procedures Governing Access to/Disclosure of a Minor's Alcohol/Drug Abuse Records.
- If state law does not require parental or legal guardian consent for the minor to receive alcohol/drug abuse treatment, written authorization for disclosure may be given by, and access may be provided to, the minor patient only.
- If state law requires the parent, legal guardian, or other person authorized by law to consent for the minor to receive alcohol/drug abuse treatment, written authorization for disclosure of the minor's records must be given by both the minor and the parent/legal guardian or other person authorized under state law to act on behalf of the minor patient.
- Where state law requires parental consent to alcohol/drug abuse treatment, a minor's application for such treatment may be communicated to the parent, legal guardian, or other authorized person only if:
- the minor has given written consent to the disclosure of the application; or
- the minor lacks the capacity to make a rational choice regarding such consent (e.g., due to extreme youth or mental or physical condition).
- Alcohol/drug abuse records may only be disclosed pursuant to the minor patient's authorization (and/or authorization of parent or legal guardian as determined by state law), Federal court orders, and in other limited circumstances. Such records shall NOT be disclosed pursuant to a law enforcement request. Any requests for disclosure of a minor's alcohol/drug abuse records should be reviewed in consultation with OGC.
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