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Guidance on Minors’ Mental Health & the HIPAA Privacy Rule

On Tuesday, some aspects of the new guidance issued by HHS related to mental health and the HIPAA Privacy Rule were discussed. Today’s topic covers the guidance highlights as they relate to minors’ mental health.

A parent, guardian, or other person acting in loco parentis is normally a representative of a minor child and, as such, he or she may receive the minor’s patient information from a health care provider under the HIPAA Privacy Rule. However, there are 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. For instance, if a state law allows a minor to seek mental health treatment without the consent of a parent, then the parent would not be the personal representative of the minor.

The guidance also clarified that a minor’s personal representative does not have the right to receive psychotherapy notes about a child’s mental health treatment, but 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.  Any such disclosure is purely permissive under the Privacy Rule, so mental health providers must consult applicable state law for any prohibitions or conditions before making such disclosures.

Providers should routinely brush-up on HIPAA requirements and ensure that appropriate measures are taken to keep PHI secure and private. The recent guidance is useful and presented in an easy-to- understand format; it should be shared with all staff members who may interact with patients and their family and/or personal representatives. If you are a provider and have HIPAA-related questions, contact a McBrayer health care attorney today.

Christopher J. Shaughnessy is an attorney at McBrayer, McGinnis, Leslie & Kirkland, PLLC.  Mr. Shaughnessy concentrates his practice area in health care law and is located in the firm’s Lexington office.  He can be reached at cshaughnessy@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

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