HIPAA and Privacy for Minors

As a parent or caregiver of a minor, you probably have concerns about healthcare privacy. Are their medical records confidential? How much access will you have to their medical information related to mental health? Can a young person access mental health services without your consent? What if you’re the legal caregiver of a young person, but not their parent? We’re here to walk you through common questions and concerns.

HIPAA and minors

You’ve probably been asked to sign a HIPAA form at medical appointments. HIPAA is the Health Insurance Portability and Accountability Act. This federal law enacted in 1996 sets rules for privacy around healthcare data.

The HIPAA Privacy Rule requires healthcare providers, facilities, and insurance and billing companies to protect the security of written, electronic, and oral medical records from anyone who has no right to see this information. HIPAA is intended to ensure that identifiable information about health, healthcare, or payment for services stays private.

So, who does have a right to see these medical records? The American Academy of Child & Adolescent Psychiatry notes that:

• A provider can talk to the treatment team in an emergency room or hospital about the young person’s medical history, diagnosis, and previous care.
• To coordinate care, a provider can share information with other members of the patient’s current treatment team, such their therapist or pediatrician, that work in the same practice.
• A provider can give information about any treatment received to your insurance company as needed (for example, they might need diagnosis codes in order to pay for treatment).

Can I see my child’s medical records?

Often you can, but not always. Here’s what to know.

The HIPAA Privacy Rule generally allows personal representatives to see a young person’s medical records.

• For many minors, a personal representative is a parent, guardian, or person acting in loco parentis who has legal authority to make healthcare decisions.
• For emancipated minors, it is a person with legal authority to make healthcare decisions. For example, this might be someone the young person chose to have healthcare power of attorney, or a court-appointed legal guardian.

There are exceptions if:

• The young person is the one who consents to care and the consent of a parent or guardian isn’t required by law.
• The young person’s care is court-ordered.
• The young person’s personal representative agrees that the provider and the young person have a confidential relationship (such as with a therapist).

Even in these cases, some states have laws that override HIPAA and still allow personal representatives access to a young person’s medical records.

The HIPAA Privacy Rule also gives providers the right to refuse to consider a parent the young person’s personal representative if the provider reasonably feels that the young person is endangered or otherwise subject to abuse, neglect, or domestic violence.

What is informed consent?

Informed consent means a patient or their representative has discussed the risks and benefits, potential side effects and adverse effects, and alternatives to the proposed medical procedure, treatment, or service with a provider. Only then can the patient or representative give their informed consent — that is, permission. Sometimes, both recommended treatment and permission are shared in writing. Other times they’re discussed verbally, and a caregiver gives spoken consent, which is then documented in the young person’s medical record.

For example:

• If you are an adult or emancipated minor, you can discuss a treatment plan — such as therapy or medication — and then give your informed consent or refuse consent yourself.
• If you are a parent or guardian who is a representative for a minor, you are included in discussions about treatment recommended by a mental health provider and must give permission before treatment begins.
• As a parent or guardian who is a representative for a minor, you have the right to either give informed consent or to refuse treatment. This means that you will have a say in the treatment plan, unless the provider feels that a decision to refuse treatment is not in a young person’s best interest.

There are exceptions to these general rules. In some states, young people over 12 can make certain medical decisions without knowledge or agreement of their parent or guardian. They may be able to consent to mental health or substance use services on their own. In these cases, providers are still required to alert a caregiver, including releasing medical information without an adolescent’s consent, if they feel that the young person or others are in immediate danger.

How can you learn more?

It’s best to check with your provider to find out the specific privacy laws in your state. You can also check Opens in a new tabthis study by the American Academy of Pediatrics, which gives a state-by-state breakdown of laws around the ability of minors to consent for medical services.