Understanding HIPAA and Parental Rights

By Debra Gordick

Dealing with a minor’s medical records can be a minefield when a child is from a blended family or the parents have a contentious divorce going. It gets especially sticky when you add in stepparents, grandparents and situations where a minor controls all or a portion of their own records. Here are some basic things you should know about HIPAA and parental rights.

Custody versus parental rights

Don’t confuse custody with parental rights. Both parents have access to a minor’s records 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 One parent can have full custody, but as long as the parental rights of the other parent haven’t been revoked by the courts, both parents can view and get copies of the medical records of the child.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 child’s records or discuss the records with someone at the practice. It is their right and the other parent can’t block that without legal documentation.

However, 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 agreement and its 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. Consult your own lawyer if needed.

Without permission from one of the parents, stepparents and grandparents do not have any rights beyond the same “to the extent they are involved in the care” standard 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 gets married and her husband adopts her child, then he becomes the father and the birth father no longer has any right 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 parental rights have 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. In this case the same rules that apply to legal guardians should be followed. 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.

Minor control of records

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.

Debra Gordick is the mediator/government liaison for Total Medical Compliance. TMC is a private consulting company providing affordable programs and seminars for health care providers, allowing them to achieve and maintain compliance with government regulations such as HIPAA, OSHA and infection control. TMC services include on-site employee training, customized compliance manuals, office inspections, and ongoing client support through monthly newsletters and a fully staffed call center. Information on seminar schedules and products can be found at www.TotalMedicalCompliance.com. For additional information call 888-862-6742 or email service@totalmedicalcompliance.com.