Behavioral Medicine P.C

 

Minors Rights

• Mental Health Treatment – Outpatient

  • Any minor 12 years of age or older may request and receive counseling services or psychotherapy on an outpatient basis without the consent of the minor’s parent or guardian. Outpatient counseling or psychotherapy provided to a minor under the age of 17 shall be limited to not more than 5 sessions, a session lasting not more than 45 minutes, until the consent of the minor’s parent or guardian is obtained. The minor’s parents shall not be informed without the consent of the minor unless the facility director believes such disclosure is necessary. The minor’s parent or guardian is not liable for the cost of the outpatient counseling or psychotherapy​

• Can a minor child’s doctor talk to the child’s parent about the patient’s mental health status and needs?​

  • With respect to general treatment situations, a parent, guardian, or other person acting in loco parent is usually is the personal representative of the minor child, and a health care provider is permitted to share patient information with a patient’s personal representative under the Privacy Rule. However, section 164.502(g) of the Privacy Rule contains several important exceptions to this general rule. A parent is not treated as a minor child’s personal representative when: (1) State or other law does not require the consent of a parent or other person before a minor can obtain a particular health care service, the minor consents to the health care service, and the minor child has not requested the parent be treated as a personal representative; (2) someone other than the parent is authorized by law to consent to the provision of a particular health service to a minor and provides such consent; or (3) a parent agrees to a confidential relationship between the minor and a health care provider with respect to the health care service.2 For example, if State law provides an adolescent the right to obtain mental health treatment without parental consent, and the adolescent consents to such treatment, the parent would not be the personal representative of the adolescent with respect to that mental health treatment information.​

  • Regardless, however, of whether the parent is otherwise considered a personal representative, the Privacy Rule defers to State or other applicable laws that expressly address the ability of the parent to obtain health information about the minor child. In doing so, the Privacy Rule permits a covered entity to disclose to a parent, or provide the parent with access to, a minor child’s protected health information when and to the extent it is permitted or required by State or other laws (including relevant case law). Likewise, the Privacy Rule prohibits a covered entity from disclosing a minor child’s protected health information to a parent when and to the extent it is prohibited under State or other laws (including relevant case law). See 45 CFR 164.502(g)(3)(ii).

  • In cases in which State or other applicable law is silent concerning disclosing a minor’s protected health information to a parent, and the parent is not the personal representative of the minor child based on one of the exceptional circumstances described above, a covered entity has discretion to provide or deny a parent access to the minor’s health information, if doing so is consistent with State or other applicable law, and the decision is made by a licensed health care professional in the exercise of professional judgment. For more information about personal representatives under the Privacy Rule, see OCR’s guidance for consumers and providers.

  • In situations where a minor patient is being treated for a mental health disorder and a substance abuse disorder, additional laws may be applicable.  The Federal confidentiality statute and regulations that apply to federally-funded drug and alcohol abuse treatment programs contain provisions that are more stringent than HIPAA.  See 42 USC § 290dd–2; 42 CFR 2.11, et. seq.​

• At what age of a child is the parent no longer the personal representative of the child for HIPAA purposes?

  • HIPAA defers to state law to determine the age of majority and the rights of parents to act for a child in making health care decisions, and thus, the ability of the parent to act as the personal representative of the child for HIPAA purposes.  See 45 CFR 164.502(g).​

• Does a parent have a right to receive a copy of psychotherapy notes about a child’s mental health treatment?

  • No.  The Privacy Rule distinguishes between mental health information in a mental health professional’s private notes and that contained in the medical record.  It does not provide a right of access to psychotherapy notes, which the Privacy Rule defines as notes recorded by a health care provider who is a mental health professional documenting or analyzing the contents of a conversation during a private counseling session or a group, joint, or family counseling session and that are separate from the rest of the patient’s medical record.  See 45 CFR 164.501.   Psychotherapy notes are primarily for personal use by the treating professional and generally are not disclosed for other purposes.  Thus, the Privacy Rule includes an exception to an individual’s (or personal representative’s) right of access for psychotherapy notes. See 45 CFR 164.524(a)(1)(i).​

  • However, parents generally are the personal representatives of their minor child and, as such, are able to receive a copy of their child’s mental health information contained in the medical record, including information about diagnosis, symptoms, treatment plans, etc.    Further, although the Privacy Rule does not provide a right for a patient or personal representative to access psychotherapy notes regarding the patient, HIPAA generally gives providers discretion to disclose the individual’s own protected health information (including psychotherapy notes) directly to the individual or the individual’s personal representative.  As any such disclosure is purely permissive under the Privacy Rule, mental health providers should consult applicable State law for any prohibitions or conditions before making such disclosures.

Policy taken from Coalition of Illinois Counselor Organizations and U.S. Department for Health and Human Services

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