The HIPAA privacy rule and adolescents: legal questions and clinical challenges

Perspectives on Sexual and Reproductive Health, March-April, 2004 by Abigail English, Carol A. Ford

Third-party reimbursement also creates challenges. Many adolescents are covered by public or private insurance, but some are unwilling or unable to use their coverage for contraceptive services, STD diagnosis and treatment, or other sensitive issues, because they worry that their parents will find out through the billing and insurance claims process. Although the HIPAA privacy rule provides a legal basis for a minor to request that providers and health plans restrict disclosure of their protected health information or that they communicate with the minor in a confidential manner, (38) the effective implementation of these provisions requires the willing and active cooperation of both health care providers and third-party payers.

Finally, clinicians continue to face the challenge of conveying the protections and limitations of confidentiality to adolescent patients and their parents. They also still face the challenge of encouraging communication between adolescent patients and their parents in a way that is respectful of adolescents' need for privacy and the support that parents can provide.

HIPAA IN THE REAL WORLD

Each year, millions of adolescents seek family planning services and STD screening. Many are minors, are competent to give informed consent for health care and deny being at risk of physical or sexual abuse. Two critical issues affect how the HIPAA privacy rule applies in these situations: the state in which the minor is located and the type of site where the care is provided.

Private Practice Settings

Often an adolescent is seen at a private physician's office for routine health care (which should include testing for chlamydial infection if she is sexually experienced), concerns about STD symptoms or family planning services. If she is a minor, the STD screening is a service that she would be able to give her own consent for in every state, although the age limit varies. Title X, state law or constitutional principles also would permit her to give her own consent for family planning services. Moreover, her parent may have agreed to her receiving confidential care from the physician. In these situations, under the HIPAA privacy rule, the adolescent is considered an "individual." Should her parents at some point want access to information and records of her care, they would be entitled to access to information about most of the general care she has received--routine care for minor acute problems, immunizations, sports physicals--but whether they could access information about the STD screening and family planning would depend on state or other law. If the laws clearly prohibit disclosure without the minor's permission or give physicians discretion, they control. If the laws are silent or unclear, the rule gives physicians and other covered entities discretion on whether parents should have access to the medical records.

The most challenging issues in a private physician's office arise with respect to billing and third-party reimbursement. If the office has routinely sent bills home for the minor's care, some diligence will be required to ensure that information on the bill does not inadvertently disclose confidential information to the parents. Moreover, if the minor has health insurance coverage and wishes to use it to pay for the care, additional risks exist that disclosure will take place through the insurance claims process, when explanations of benefits are sent to the policyholder, usually a parent. The rule may minimize these risks if minors use the option of requesting restrictions on disclosure or confidential communications. Ultimately, however, effective implementation of confidential care for minors in a private physician's office depends on cooperation of the minor, the physician, and any health plan or insurer that is involved.