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October 2, 2006
Two experts in the field discuss the nuances of the law and how it pertains to release of information. Mental health, reproductive care, and drug and alcohol treatment are sticky areas when they involve the treatment of minors (those under the age of 18). When it comes to such information, healthcare providers need to be aware of the laws and guidelines surrounding such issues. Some are black and white; others fall in gray areas. “Until you really understand the release of information for minors, you don’t understand the ramifications,” explains Barbara Ekorenrud, operations manager for the behavioral health division at Group Health Cooperative in Seattle. “The laws vary state by state. The age of consent for treatment and protection of confidentiality for mental health, reproductive care, and chemical dependency treatment differ [from] the age for [the release of information about] medical treatment, which is 18.” Know the law Ekorenrud says Group Health Cooperative, where she is responsible for seven clinics and an inpatient clinic, receives many calls from parents asking for information about their minor children’s treatment. Some calls range from “I pay the bills, why can’t you tell me what’s going on with my child?” to “My child forgot the time of his appointment. I drive him there anyway. Why can’t you tell me?” These questions put the office staff on the front line and present them with a great challenge. The key, says Ekorenrud, is letting parents know that you’re not being difficult, that there are laws about these issues. It’s important to develop “internal scripting” for office staff to let them know how to respond to parents’ requests for information about their minor children’s treatment. Ekorenrud advises healthcare providers to simulate a patient walk-through scenario from the initial point of contact. For example, how will receptionists and office staff respond if a parent calls in to ask the time of their minor’s appointment? “Don’t underestimate the importance of your front-line staff,” advises Ekorenrud. Ekorenrud’s staff uses a general release of information form, albeit one that is specific about the information that the minor is authorizing them to release. They carefully explain to minors what information they are permitting the Group Health Cooperative to release to parents—for example, appointment dates and times and making, changing, or canceling appointments. Minors are more willing to sign the release forms if they understand exactly what they permit. Reproductive Health In Washington State, no parental consent is required for those aged 14 or older, according to Linda M. Coleman, an attorney at Bennett, Bigelow & Leedom in Seattle. Washington law states: “A minor 14 years of age or older who may have come in contact with any sexually transmitted disease or suspected sexually transmitted disease may give consent to the furnishing of hospital, medical, and surgical care related to the diagnosis or treatment of such disease. Such consent shall not be subject to disaffirmance because of minority. The consent of the parent, parents, or legal guardian of such minor shall not be necessary to authorize hospital, medical, and surgical care related to such disease and such parent, parents, or legal guardian shall not be liable for payment for any care rendered pursuant to this section.” Mental Health and Chemical Dependency
Treatment According to Coleman, the disclosure of certain limited confidential information regarding a minor’s mental health treatment may be disclosed to law enforcement personnel under the following circumstances: if a minor fails to return from an authorized leave from a treatment facility; if a minor violates a less restrictive court order for mental health treatment; or if a minor escapes from custody or leaves a mental health facility or hospital without permission. Law enforcement personnel are also entitled to access all relevant healthcare information, and other information, in the possession or control of the person or provider that reports alleged child abuse or neglect. The national age for the release of information concerning chemical dependency is 13, according to Ekorenrud, who adds that chemical dependency treatment is protected at a much higher “firewall” than mental health. “Without a release, knowledge doesn’t exist,” she says, referring to the release of information concerning a minor’s chemical dependency treatment. “Kids can present for treatment on their own without their parents being involved. We have to set up ‘shell billing’ accounts or do whatever is needed to help the kids get treatment without involving the parents. Healthcare providers do encourage kids to call or involve parents in their treatment.” If a minor above the age of 14 consents to drug or alcohol treatment and is authorized to do so under the law, may the parent who also knows about the treatment authorize the disclosure of confidential treatment information? “No. Only the minor may exercise the right of the individual with respect to the release of confidential treatment information,” explains Coleman. Coleman posed this hypothetical situation: During the course of a dependency hearing to terminate parental rights in Washington State, the assistant attorney general, as the agent of the legal guardian of a minor who is under the age of 13, has asked a minor’s mental health provider to disclose protected health information. May the attorney request such a disclosure? If the therapist believes such a disclosure may be harmful to the minor, must the mental health professional disclose the protected health information? According to Coleman, the assistant attorney general, as the legal guardian of the minor, has the legal right to request such a disclosure; however, a mental health provider may require a court order to release protected information if the mental health provider believes the minor may be potentially harmed by such a disclosure. HIPAA’s Influence “What HIPAA’s given us is a way to explain to people these laws. HIPAA gives us a common language or communication vehicle for patients to understand,” she explains. Do these laws hurt or help minors? The laws hurt minors, according to Coleman, who reasons that if the minor is concerned that confidential information will be made public, he or she may not seek treatment or provide the healthcare provider with all necessary information. Also, she points out that the provider’s duty of confidentiality is complicated by the fact that the provider must be mindful of the minor’s parents’ rights. Plus, if parental notice was mandatory, it would affect a minor’s right to make healthcare decisions. Minors over the age of 13 and/or 14 can make decisions and restrict disclosure of healthcare information. “If a minor is under a certain age—13 and/or 14 in many cases—parents are able to protect minors and make informed healthcare decisions for their minor children,” explains Coleman. “It is presumed that a person under a certain age may not be able to make informed decisions because [he or she is] unable to understand the nature of a particular course of treatment. On the other hand, if medical care is refused by the parents or another legally qualified person and there is no emergency, a healthcare provider is faced with either doing nothing or seeking authorization of a court if treatment is considered necessary, or otherwise in the best interest of the minor.” The issues surrounding the release of information regarding minors’ behavioral health treatment and reproductive healthcare are covered quite extensively by both state and national laws. These issues continue to be a challenge for providers as they deal with their ramifications daily through interactions with minors and parents. — Laura Gater’s medical and business
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