1. Adolescent Health and Confidentiality
NCPHA Fall Educational Conference
Jill Moore, JD, MPH
UNC School of Government
September 2016

2. Adolescent Health and Confidentiality
The Public Health Nursing and Professional Development Unit, North Carolina Division of Public Health, is approved as a provider of continuing nursing education by the North Carolina Nurses Association, an accredited approver by the American Nurses Credentialing Center’s Commission on Accreditation.
This presentation is being jointly provided with the North Carolina Association of Public Health Nursing, Women’s and Children’s Health and Social Work Sections.
The planners and presenters have no actual, potential or perceived conflicts of interest to disclose.

3. Adolescent Health and Confidentiality
In order to obtain CE for this session participants must:
Remain for the entire presentation
Complete and submit the participant evaluation from the Public Health Nursing and Professional Development Unit which will be provided at the end of the presentation.
A total of one contact hour will be awarded for this presentation.

4. Adolescent Health and Confidentiality
Objectives
Identify changes in the NC statutes related to consent for the treatment of minors in DSS custody
Discuss challenges in confidentiality created by the use of new technologies, such as texting and patient portals
Review components of a draft policy on text messaging
Describe 2015 changes to NC’s Healthy Youth Act

5. Healthy Youth Act Changes
S.L (S 279)
“An Act to Modify Educational Qualifications for the Practice of Counseling and to Require Local Boards of Education to Address Sex Trafficking Prevention & Awareness”
Also amended G.S. 115C-81(e1)(4), aka Health Youth Act

6. Healthy Youth Act Changes
History:
Abstinence-based sex education, comprehensive sex education only if locally approved
2009 – Health Youth Act:
Added comprehensive sex education, to include information about condoms and contraceptives as well as abstinence
Required instructional materials to be based on scientific research that is peer-reviewed and accepted by professionals and credentialed experts in field of sexual health education

7. Healthy Youth Act Changes
“Information conveyed during the instruction shall be objective and based upon scientific research that is peer reviewed and accepted by professionals and credentialed experts in the field fields of any of the following: sexual health education. education, adolescent psychology, behavioral counseling, medicine, human anatomy, biology, ethics, or health education.“
Also required actions related to sex trafficking prevention and awareness.
LEAs must collaborate with “diverse group of outside consultants” including law enforcement to address threat of sex trafficking and develop a referral protocol for students
Law enforcement agencies and nongovernmental organizations with expertise in sex trafficking prevention and awareness may contribute to instructional materials and information.

8. Cyberbullying (G.S )
State v. Bishop, NC Supreme Court (June 10)
Case: High school student posted comments on Facebook about another student, including comments about the other student’s sexuality and genitals. Student who posted comments charged with cyberbullying and convicted. Appealed conviction.
Court decision: The portion of cyberbullying statute that was basis of the conviction violates First Amendment: restricts speech, the restriction is not content-neutral, and the statute is not narrowly tailored to State’s interest in protecting children from online bullying.
What does this mean?
The portion of the statute that was struck down can’t be enforced
Other portions of statute? Not directly affected by court’s decision, but decision may call into question whether they too might be invalidated and this will likely influence decisions about prosecutions

9. Consent to health care for minors (under age 18)

10. Who may consent for minor?
General rule: Parent (or parent substitute) consents
Exceptions:
Emancipated minors
Parent authorizes another adult to consent
Emergencies and other urgent circumstances
Minor’s consent law

11. Minor in DSS custody (G.S. 7B-505.1)
DSS director may consent
Routine medical and dental care or treatment
Emergency medical, surgical, psychiatric, psychological, or mental health care or treatment
Testing & evaluation in exigent circumstances
DSS must obtain parent’s authorization for DSS to consent (unless court authorizes director to consent)
Prescriptions for psychotropic medications
Participation in clinical trials
Immunizations when it is known the parent has a bona fide religious objection
Child Medical Evaluation
Comprehensive clinical assessments or other mental health evaluations
Surgical, medical, or dental procedures or tests that require informed consent
Psychiatric, psychological, or mental health care or treatment that requires informed consent
Minor may consent (G.S )
A minor in DSS custody may consent to treatments covered under NC minor’s consent law, the same as a minor who is not in DSS custody

12. Minors’ consent laws

13. What is required to be able to give consent to treatment?
Legal capacity
Legal recognition of a class of individuals’ authority to give informed consent to treatment
Example: Everyone over age 18
Not individualized; if you’re in the class you have legal capacity to consent
Decisional capacity
Particular individual is capable of making and communicating his or her own health care decisions
Individualized determination: is this person capable of making and communicating this decision?

14. What is required for a minor to give consent for own treatment?
Legal capacity
Legal recognition that the minor may consent
Emancipated minors
Minor’s consent laws
Decisional capacity
Individualized determination: is this minor capable of making and communicating this decision?

15. NC minors’ consent law (GS 90-21.5)
Gives any minor legal capacity to consent to services for the prevention, diagnosis, or treatment of:
Sexually transmitted infections or other reportable communicable diseases
Pregnancy (but minors may not receive abortions or medical sterilization on their own consent)
Emotional disturbance (but minors may not consent to admission to a 24-hour facility, except in emergencies)
Abuse of controlled substances or alcohol (with the same restriction on admission to 24-hour facilities)

16. What’s the minimum age?
What do you think about the minimum age for a minor to give consent under NC’s minor’s consent law?
§   Minor's consent sufficient for certain medical health services.
(a)  Any minor may give effective consent to a physician licensed to practice medicine in North Carolina for medical health services for the prevention, diagnosis and treatment of (i) venereal disease and other diseases reportable under G.S. 130A-135, (ii) pregnancy, (iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance.  …

17. Other FAQs about G.S
Does law authorize a minor to consent to HPV vaccine?
What if parent wants minor to have a treatment covered by minor’s consent law, but minor doesn’t want it?
Did the legislature change it?

18. Confidentiality and disclosure of records

19. Why have confidentiality for adolescents?
Avoid negative health outcomes
Protect individual adolescents’ health
Protect the public health
Encourage adolescents to seek needed care
Research supports rationale – findings show that concerns about privacy influence:
Whether adolescents seek care
When and where they seek care
How open they are with health care provider

20. Confidentiality Laws Federal State HIPAA FERPA
Others specific to particular settings or clients:
Title X
Substance abuse (applies to federally assisted substance abuse programs, not to all substance abuse info in medical records)
Confidentiality for minor’s consent services (G.S )
Other laws specific to particular conditions or treatments:
Communicable disease
Mental health

21. HIPAA terms Protected health information (PHI)
Information that identifies an individual and relates to
Health status or condition, or
Provision of health care, or
Payment for the provision of health care
Individual
A person who is the subject of PHI
Personal representative
A person with legal authority to act on behalf of an individual in making decisions related to health care

22. Who controls disclosure of information?
General rule: Individual
But if individual can’t make own health care decisions, then personal representative
How does this apply to minors?

23. Minor is treated as “individual” if:
HIPAA & Minors
Minor is treated as “individual” if:
Minor consents to health care service and no other consent is required by law
Minor’s consent law (G.S )
Minor may lawfully obtain care without parental consent and the minor, a court, or another person gives the consent
Ex: NC law allows certain adults other than parents to consent to minor’s abortion, or court may waive parental consent
Minor’s parent agrees to confidentiality between minor and HCP for a health care service
Ex: Pediatrician may ask a parent for permission to examine and/or consult with an adolescent privately

24. What does it mean for the minor to be treated as the “individual”?
Minor is the person who exercises HIPAA rights regarding information about the health care service:
Signing authorizations for disclosure (when authorization is required)
Right of access to the information
Right to request additional confidentiality protections for the information

25. What about disclosure to parents?
HIPAA defers to state or “other applicable” law
State/other law requires disclosure
HCP must disclose
State/other law prohibits disclosure
HCP may not disclose
State/other law permits disclosure
HCP has discretion
State/other law is silent on issue

26. What do NC & other laws say about disclosing minor’s consent info to parents?
NC law (G.S (b))
Other laws
General rule: No disclosure to parent without minor’s permission
Exception: HCP may disclose to parent if:
Essential to life or health of the minor, or
Parent contacts HCP and inquires about the treatment
May prohibit or inhibit disclosure to parents about minor’s consent services for:
Family planning (Title X, Medicaid)
Communicable diseases (G.S. 130A-43)
Mental health (G.S. Ch. 122C)
Substance abuse (42 CFR Part 2)

27. Bottom lines? General Rule Exceptions
Need the minor’s permission to disclose information about treatment received under minor’s consent law to anyone, including parents
May disclose to parent if essential to minor’s life or health
May make other disclosures without minor’s permission when disclosure is required by other laws (e.g., to report child abuse or neglect)

28. Emerging issues in confidentiality

29. Insurance & Confidentiality
Slide credits: Abigail English, JD, Center for Adolescent Health & the Law
See also: Position Paper: Confidentiality Protections for Adolescents and Young Adults in the Health Care Billing and Insurance Claims Process (Society for Adolescent Health & Medicine & the American Academy of Pediatrics)

30. Center for Adolescent Health & the Law
Evolving Challenge
Increased number of individuals with Medicaid and commercial insurance
Increased number of young adults > age 18 covered on parents’ plans
Significant potential for confidentiality breaches in billing & health insurance claims process
Evolving protections at state level build on HIPAA Privacy Rule, face challenges
Center for Adolescent Health & the Law

31. HIPAA Privacy Rule: Special Protections
Request for restrictions on disclosure of protected health information
Request for communication by alternate means or at alternate locations
Center for Adolescent Health & the Law

32. Disclosure Requirements
Federal law
HIPAA Privacy Rule: disclosures allowed for treatment, payment, & health care operations
ERISA & ACA: notice of denials of claims & adverse benefit determinations
Medicaid does not require EOBs
State law
Types of communications: EOBs, denials, & others
Recipients of communications: policyholder, beneficiary & other
Content of communications; provider, type of service, & other
Insurers’ policies & practices
Center for Adolescent Health & the Law

33. Position statements in brief
HCPs should be able to deliver confidential health services to adolescents/young adults covered as dependents on family insurance
Policies and procedures should be established to ensure that health care billing and insurance claim processes such as EOB notifications do not impede confidential services

34. Patient Portals Who has access? Parent/parent/substitute? Minor? Both?
What do laws say about who should have access?
Parent/parent/substitute?
Minor?
Both?
Sometimes parent (if treated as minor’s personal representative under HIPAA)
Sometimes minor (if treated as individual under HIPAA)
Could be both (it depends)

36. HIPAA Security Rule
Applies if texts contain protected health information
All ePHI must be protected by technical, physical, and administrative safeguards
Cannot address this issue with an authorization form – need a policy that satisfies security rule’s requirements

37. Template policy
Conduct a security risk analysis before adopting policy
Customize policy to your agency
Train workforce before implementing policy

38. Jill Moore UNC School of Government 919-966-4442 moore@sog.unc.edu
Contact Information
Jill Moore UNC School of Government