If your practice triggers the HIPAA Privacy Rule, you also need to be aware of how the HIPAA Privacy Rule interacts with state law regarding minors.
Unlike with other parts of the HIPAA Privacy Rule, this is not simply a matter of determining whether the Privacy Rule or state law is more stringent — that is, more protective of privacy — and therefore takes precedence. Instead, in the area of minors’ rights to confidentiality, the Privacy Rule determines who controls the child’s privacy rights by looking to certain issues under state law.
One of these issues is whether the law allows a minor to consent to treatment. If a minor has consented to treatment under a state law that allows for it, the Privacy Rule generally lets the minor exercise his or her own privacy rights.
Yet the general rule under HIPAA is that the minor’s parent or guardian exercises the minor’s privacy rights. In other words, the parent or guardian would receive the privacy notice required by HIPAA, give consent for releasing the minor’s mental health information, and have the right to access and amend treatment records. As noted in the preceding paragraph, however, there are several exceptions to this general rule.
Additional information is contained in the individualized Explanation Form for each state included in
HIPAA for Psychologists
, the Privacy Rule compliance product available for purchase from the APA Practice Organization.
This article provides a brief overview of some key privacy and confidentiality issues that may arise when treating minor clients. It is essential for a psychologist who works with minor clients to be familiar with relevant state law, to recognize potential benefits and limitations of written agreements, to understand considerations that may apply when the minor’s parents are divorced or separated, and, if applicable, to know how relevant state law intersects with the HIPAA Privacy Rule.
This article is the fourth in a series, “A Matter of Law,” about the practical effect of various laws and regulations on practicing psychologists.
PLEASE NOTE: Legal issues are complex and highly fact-specific and require legal expertise that cannot be provided by any single article. In addition, laws change over time. The information in this article should not be used as a substitute for obtaining personal legal advice and consultation prior to making decisions regarding individual circumstances.