Minors, Informed Consent, and Parental Rights of Access and Health Care Decision Making in Alaska: Case Scenarios, HIPAA, and Alaska Law Joan M. Wilson

This time last year…. A lot of questions…. Competing principles.... Combination of Federal and State law... What about common sense.... These are the overarching topics we will drill down to code of conduct and specific standards during this presentation and discuss employee responsibilities/ANTHC expectations of it’s workforce.

Case Scenarios Thirteen old girl comes into medical appointment alone. Provider calls you uncertain what to do. By review of file, provider can tell girl was victim of abuse. Recently treated in an emergency department. Here to see physician to begin anti-viral treatments for HIV. The provider wants to know…. Can she speak to the child alone? Can she provide treatment? What can she tell the parent? What factors impact this analysis

Case Scenarios A father contacts a facility’s Health Information Management Department requesting copies of her five year old son’s medical records for the past year. The HIM Department finds some confusing things in the record: a court order denying the father legal custody and a court order permitting the father to have access to the records. Upon review of the records, the HIM specialist sees something of concern in the record. She contacts the provider to request his review. What factors implement this analysis

Case Scenarios Recent Grey’s Anatomy episode Precocious teenager much smarter and more practical than her nervous mom requests experimental surgery to replace her cancer infested rib cage with a 3D printer genetic replacement. Mother provides informed consent to surgery. But there is a complication, the ribs don’t fit. Doctors have to undertake a difficult fix that might pierce young teenager’s heart. Mother is asleep in surgery. Dr. Alex Karev provides consent instead, stating he knows this is what the precocious teenager would want. What are the factors here?

Analysis What right is at issue? Determine health care Access Records What law applies Federal State Combination of two (Collaborative v. Preemptive)

Right to Consent Parental Rights and Responsibilities (joined with children) 25.20.030. Duty of parent and child to maintain each other (1949 codification) Each parent is bound to maintain the parent's children when poor and unable to work to maintain themselves. Each child is bound to maintain the child's parents in like circumstances.

What this means Regardless of whether a support order exists, a parent is obligated both by statute and at common law to support his or her children A parent’s duty commences at the date of the birth of the child and runs through majority State statutes establish duty for parent to care for child

Violation of Duties AS 11.51.100– Crime of Endangerment to the Welfare of a Minor First Degree Office if victim is defendant’s child

Violation of Duties AS 11.51.120 Criminal Nonsupport A person commits the crime of criminal nonsupport if, being a person legally charged with the support of a child the person knowingly fails, without lawful excuse, to provide support for the child. As used in this section “support” includes necessary food, care, clothing, shelter, medical attention, and education. There is no failure to provide medical attention to a child if the child is provided treatment solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner of the church or denomination.

Right to Consent Custodial Disputes AS 25.20.130 A parent who is not granted custody under AS 25.20.060 - 25.20.130 has the same access to the medical, dental, school, and other records of the child as the custodial parent.

Right to Consent Legal Custody -- Parks v. Parks, 214 P.3d 295 (2009) Legal custody implies the ability to make major life decisions for one’s child Absent abuse, presumption in favor

Right to Consent Minor’s Right to Consent AS 25.20.025 Except as prohibited under AS 18.16.010(a)(3), the following may consent to health care: A minor who is living apart from the minor's parents or legal guardian and who is managing the minor's own financial affairs, regardless of the source or extent of income, A minor if the parent or legal guardian of the minor cannot be contacted or, if contacted, is unwilling either to grant or withhold consent; Counseling on valid interests or minor and parents required; (3) a minor who is the parent of a child may give consent to medical and dental services for the minor or the child; (4) a minor may give consent for diagnosis, prevention or treatment of pregnancy, and for diagnosis and treatment of venereal disease; (5) the parent or guardian of the minor is relieved of all financial obligation to the provider of the service under this section. (b) The consent of a minor who represents that the minor may give consent under this section is considered valid if the person rendering the medical or dental service relied in good faith upon the representations of the minor. (c) Nothing in this section may be construed to remove liability of the person performing the examination or treatment for failure to meet the standards of care common throughout the health professions in the state or for intentional misconduct.

Right to Consent Minor’s Right to Consent AS 25.20.025 Except as prohibited under AS 18.16.010(a)(3), the following may consent to health care: a minor who is the parent of a child may give consent to medical and dental services for the minor or the child; a minor may give consent for diagnosis, prevention or treatment of pregnancy, and for diagnosis and treatment of venereal disease;

More on Minor Consent The parent or guardian of the minor is relieved of all financial obligation to the provider of the service under this section. The consent is considered valid if the person rendering the medical or dental service relied in good faith upon the representations of the minor. Nothing removes liability of the person performing the examination or treatment for failure to meet the standards of care common throughout the health professions in the state or for intentional misconduct.

Right of Access 45 C.F.R. 164.502(g)(1) Standard: Personal representatives. As specified in this paragraph, a covered entity must, except as provided in paragraphs (g)(3) and (g)(5) of this section, treat a personal representative as the individual for purposes of this subchapter.

Right of Access 45 C.F.R. 164(g)(2) Implementation specification: adults and emancipated minors. If under applicable law a person has authority to act on behalf of an individual who is an adult or an emancipated minor in making decisions related to health care, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representation.

Right of Access (3)(i) Implementation specification: unemancipated minors. If under applicable law a parent, guardian, or other person acting in loco parentis has authority to act on behalf of an individual who is an unemancipated minor in making decisions related to health care, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representation

Right of Access except that such person may not be a personal representative of an unemancipated minor, and the minor has the authority to act as an individual, with respect to protected health information pertaining to a health care service, if:

Right of Access IF The minor consents to such health care service; no other consent to such health care service is required by law, regardless of whether the consent of another person has also been obtained; and the minor has not requested that such person be treated as the personal representative; The minor may lawfully obtain such health care service without the consent of a parent, guardian, or other person acting in loco parentis, and the minor, a court, or another person authorized by law consents to such health care service; or

Right of Access IF (C) A parent, guardian, or other person acting in loco parentis assents to an agreement of confidentiality between a covered health care provider and the minor with respect to such health care service.

Right of Access Exceptions to Denial of Access under (g)(1) (ii) Notwithstanding the provisions of paragraph (g)(3)(i) of this section: (A) If, and to the extent, permitted or required by an applicable provision of State or other law, including applicable case law, a covered entity may disclose, or provide access in accordance with 164.524 to, protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis;

Right of Access Exceptions to Granting of Access under (g)(1) (B) If, and to the extent, prohibited by an applicable provision of State or other law, including applicable case law, a covered entity may not disclose, or provide access in accordance with ¤ 164.524 to, protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis; and

Right of Access Exceptions to granting or denial (C) Where the parent, guardian, or other person acting in loco parentis, is not the personal representative under paragraphs (g)(3)(i)(A), (B), or (C) of this section and where there is no applicable access provision under State or other law, including case law, a covered entity may provide or deny access under ¤ 164.524 to a parent, guardian, or other person acting in loco parentis, if such action is consistent with State or other applicable law, provided that such decision must be made by a licensed health care professional, in the exercise of professional judgment.

Denial of Access (5) Implementation specification: Abuse, neglect, endangerment situations. Notwithstanding a State law or any requirement of this paragraph to the contrary, a covered entity may elect not to treat a person as the personal representative of an individual if: (i) The covered entity has a reasonable belief that: The individual has been or may be subjected to domestic violence, abuse, or neglect by such person; or Treating such person as the personal representative could endanger the individual; and (ii) The covered entity, in the exercise of professional judgment, decides that it is not in the best interest of the individual to treat the person as the individual's personal representative.

Appeal of Denial of Access 45 C.F.R. 164.524 (d) Implementation specifications: Denial of access. If the covered entity denies access, in whole or in part, to protected health information, the covered entity must comply with the following requirements. (1) Making other information accessible. The covered entity must, to the extent possible, give the individual access to any other protected health information requested, after excluding the protected health information as to which the covered entity has a ground to deny access.

Appeal of Denial of Access (2) Denial. The covered entity must provide a timely, written denial to the individual, in accordance with paragraph (b)(2) of this section. The denial must be in plain language and contain: (i) The basis for the denial; (ii) If applicable, a statement of the individual's review rights under paragraph (a)(4) of this section, including a description of how the individual may exercise such review rights; and (iii) A description of how the individual may complain pursuant to the complaint procedures in 164.530(d) or to the Secretary pursuant to the procedures in 160.306. The description must include the name or title and telephone number of the contact person or office designated in 164.530(a)(1)(ii).

Appeal of Denial of Access (4) Review of denial requested. If the individual has requested a review of a denial under paragraph (a)(4) of this section, the covered entity must designate a licensed health care professional, who was not directly involved in the denial to review the decision to deny access. The covered entity must promptly refer a request for review to such designated reviewing official. The designated reviewing official must determine, within a reasonable period of time, whether or not to deny the access requested based on the standards in paragraph (a)(3) of this section. The covered entity must promptly provide written notice to the individual of the determination of the designated reviewing official and take other action as required by this section to carry out the designated reviewing official's determination.

Case Scenarios Thirteen old girl comes into medical appointment alone. Provider calls you uncertain what to do. By review of file, provider can tell girl was victim of abuse. Recently treated in an emergency department. Here to see physician to begin anti-viral treatments for HIV. The provider wants to know…. Can she speak to the child alone? Can she provide treatment? What can she tell the parent? What factors impact this analysis

Case Scenarios A father contacts a facility’s Health Information Management Department requesting copies of her five year old son’s medical records for the past year. The HIM Department finds some confusing things in the record: a court order denying the father legal custody and a court order permitting the father to have access to the records. Upon review of the records, the HIM specialist sees something of concern in the record. She contacts the provider to request his review. What factors implement this analysis

Case Scenarios Recent Grey’s Anatomy episode Precocious teenager much smarter and more practical than her nervous mom requests experimental surgery to replace her cancer infested rib cage with a 3D printer genetic replacement. Mother provides informed consent to surgery. But there is a complication, the ribs don’t fit. Doctors have to undertake a difficult fix that might pierce young teenager’s heart. Mother is asleep in surgery. Dr. Karev provides consent instead, stating he knows this is what the precocious teenager would want. What are the factors here?

Conclusions QUESTIONS? What are the factors here?