HIPAA and Battling Parents-Newest Update

Dealing with a minor’s medical records can be a HIPAA minefield when a child is from a blended family or the parents have a contentious divorce going. This gets especially sticky when you add in stepparents and grandparents and situations where a minor controls all or a portion of their own records. It’s a good time to review the basics.

Custody versus Parental Rights Don’t confuse custody with parental rights. Both parents of a minor have access rights to a minor’s record unless the minor can consent to their own treatment. If one parent wants to block the other parent from the records there is only one way to do that.  The parent being blocked has to have their “parental rights” removed by the court. Your practice must be presented with a judge-signed order designating this. Custody of the child is different.  One parent can have full custody but as long as the parental rights of the other parent haven’t been revoked by the courts then both parents can view and get copies of the medical records of the child.

Extended Family  Either parent can sign an authorization for a stepparent, grandparent or another person to have a copy of the records or to allow the practice to talk to that individual. It is their right and the other parent can’t block that without legal documentation. (State law on custody can influence this issue.  Depending on custody arrangements, it may take both parents to agree.  As you don’t have access to the custody agreements and their implications take the most restrictive stance until you are presented with an agreement between the parents or a legal document.  You do not have to be put in the middle of a parental dispute but can consult your own lawyer if desired.)  Without permission from one of the parents, stepparents and grandparents do not have any rights beyond “to the extent they are involved in the care” that applies to anyone.

Adoptive Parents  In order for someone to adopt a child, one or both parents have to give up their parental rights. For example, if a woman marries and her husband adopts her child, then he becomes the father and the birth father no longer has any rights to the records.

Legal Guardians  A legal guardian is granted parental rights by court order. If someone is designated a legal guardian, parental rights are not automatically removed from the parents. That would take an extra step and, again, your practice must be presented with the court order stating the parental rights had been removed.

State Custody When the state has custody of a minor and the child has been removed from the home, the state assumes legal guardianship of the child and the same rules apply. The social worker in charge of the case is granted parental rights but this does not remove the rights of the parents. Note that the social worker is the legal guardian, not the caregiver.

With all this, care should be taken when sharing information about one parent to the other. This especially concerns location, and credit card and insurance numbers. If possible, that information should not be included in the minor’s medical record. If this is not possible, and one parent has concerns, they should consult with an attorney on how to revoke this access.

Some minors have control of their own records. In general, HIPAA says that if the minor can consent to their own treatment then the minor alone has access rights. State law determines when a minor can consent to their own treatment.