Minors as Clients: What Counselors Need to Know

Categories: RECENT RESEARCH

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Most counselors have a good sense of requirements related to adult clients, but many find themselves on shakier ground when it comes to care of clients who are minors. Yet minors tend to carry more risk for litigation because of their unique status in our society. To protect yourself from liability, it’s important to understand legal and regulatory requirements related to minors.

Minors and privacy

A minor is a person under the age of legal consent, typically younger than 18 years, as defined by state law. How much privacy does a minor have when it comes to sharing personal health information (PHI)? In most states, children can’t exercise their rights under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule until they are 18 years old. Until then, a parent, guardian, or other person acting in loco parentis is considered the “personal representative” (a person legally authorized to make health care decisions on an individual’s behalf) of the child, so information, including access to the child’s health records, is allowed. In addition, the personal representative can authorize sharing information electronically and in print with other healthcare providers.

However, there are three situations where the parent, guardian, or other person acting in loco parentis would not be considered the minor’s personal representative:

The minor is the one who consents to care and the consent of the parent or other person is not required under state or other applicable law.
A court determines or other law authorized someone other than the parent, guardian, or person acting in loco parentis to make treatment decisions for the minor.
The parent, guardian, or person acting in loco parentis agrees that the minor and the healthcare provider may have a confidential relationship.

In these situations, the parent may have access to the health records when state or other applicable law requires or permits such parental access. If laws state parental access is not allowed and counselors provide access, your healthcare practice could incur financial penalties from $100 to $50,000 or more for each violation (capped at $1.5 million per calendar year). Criminal penalties, including imprisonment, apply when a person knowingly obtains or discloses individually identifiable PHI.

If there is no guidance available from state or other laws, the licensed healthcare provider can use professional judgment to the extent allowed by law to grant or deny parental access to the minor’s medical information. If child abuse or neglect is suspected and giving the parent access to PHI may put the child at further risk of harm, counselors can choose not to provide the information.

An emancipated minor acts as his or her own personal representative. State courts may grant emancipation, or emancipation may be situational, such as the case of minors who are or have been married, are parents, attend college away from home, or are members of the military.

State laws indicate when and under what conditions children can become independent of their parents for legal purposes. Information about each state can be accessed at www.law.cornell.edu/wex/table_emancipation. The bottom line: Know your state’s laws and consult your attorney as needed.

Minors and consent

An emancipated minor or the personal representative of a child can grant consent to treatment. In many states, minors themselves can give consent for treatment related to specific needs, such as substance abuse, mental health care, or birth control.

It’s important that counselors conduct due diligence to ensure the person signing the consent is authorized to do so. For example, if the child’s parents are separated or divorced, the counselor should ask for a copy of the divorce decree or custody agreement because both parents often have legal custody (and can make treatment decisions) even though one parent has residential custody for the child. A copy of the court order should also be obtained in cases of a legal guardian or guardian ad litem.

The basic principles of obtaining consent should be followed, including a verbal discussion, followed by written documentation. Information should be in the consenter’s preferred language and at the appropriate literacy level. Counselors should document the consent process in the client’s health record.

In the case of an emergency, a minor can be treated without consent of the personal representative, but it’s important to keep in mind that the burden of proof that treatment was needed will fall on the provider. In this situation, thorough documentation is essential.

Education

To protect your counselors, your facility should have policies and procedures that give staff specific guidance related to obtaining consent and sharing health records. Be sure to know and understand these policies.

Transferring health records

Whether the client is a child or adult, it’s important to consider the following information related to providing health record information to the personal representative or sharing the health record with another provider:

If your business maintains an electronic health record (EHR), you must provide a copy in at least one readable electronic format. If the personal representative doesn’t want an electronic copy, you can provide a print copy.
You do not have to use a personal representative’s own flash drive or other device to transfer the records if you are concerned about security. If the request is to send the files by unencrypted e-mail, it’s best to have the personal representative sign a form acknowledging the inherent security risk of doing so.
The personal representative can request, in writing, that an electronic copy of the health record be sent directly to a third person. Be sure to have a policy explaining how staff should verify the identity of the third person before sending the record.
You can charge the personal representative a reasonable fee for labor costs incurred in copying health records, but first check state law requirements.

Safeguarding your business

Understanding that minors can pose unique risk management challenges will help you avoid legal action related to treating a minor and sharing PHI.

Resources

Adler EA. Practices must comply with new medical record transfer rules. Physicians Practice. Feb. 20, 2013. www.physicianspractice.com/blog/practices-must-comply-new-medical-record-transfer-rules.

American Academy of Pediatrics. Policy statement—consent for emergency medical services for children and adolescents. Pediatrics. 2011;128(2):427-433.

Cornell University Law School. Emancipation of minors. Legal Information Institute. www.law.cornell.edu/wex/emancipation_of_minors.

HHS.gov. Does the HIPAA privacy rule allow parents the right to see their children’s medical records? December 19, 2002./www.hhs.gov/hipaa/for-professionals/faq/227/can-i-access-medical-record-if-i-have-power-of-attorney/index.html.

HHS.gov. Summary of the HIPAA privacy rule. www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations.

McNary A. Consent to treatment of minors. Innovations in Clinical Neuroscience. 2014;11(3-4):43-45.