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UNDERSTANDING CONFIDENTIALITY

AND MINOR CONSENT IN CALIFORNIA

An Adolescent Provider Toolkit

Illustrations by Jordan Zioni, 17

This toolkit can be downloaded from the following websites:

Adolescent Health Working Group - www.ahwg.net

San Francisco Health Plan – www.sfhp.org

Additional copies of the Toolkit may be requested via mail, telephone, fax or e-mail

from:

Adolescent Health Working Group

323 Geary Street, Suite 418

San Francisco, CA 94102

Telephone: (415) 576-1170 x312

Fax: (415) 576-1286

E-mail: [email protected]

The Adolescent Health Working Group (AHWG) was formed in 1996 when adoles-

cent health providers, administrators, and youth advocates in San Francisco became

concerned about Medicaid managed care’s impact on young people’s access to

youth-sensitive, comprehensive health care. Today, the mission of the AHWG is to

significantly advance the health and well-being of San Francisco’s youth by applying

the collective wisdom, resources, and energy of individuals and agencies that care

for and support young people. The AHWG’s activities include conducting commu-

nity research, public policy advocacy, and training activities. Members of the collab-

orative include representatives of youth development agencies; public and private

primary care, behavioral health clinics and programs; academic institutions; health

plans; schools; social service and advocacy organizations; youth and parents.

San Francisco Health Plan (SFHP) is a licensed community health plan providing

affordable health coverage to low and moderate-income families residing in San

Francisco. SFHP was designed for and by the residents it serves, many of whom

would not be able to otherwise obtain health care for themselves or their families.

Through SFHP, members have access to a full spectrum of medical services, includ-

ing preventive care, hospitalization, prescription drugs, family planning, and sub-

stance abuse programs. SFHP's mission is to provide superior, affordable health care

that emphasizes prevention and promotes healthy living, with the goal of improving

the quality of life for the people of San Francisco.

M. Simmons, J. Shalwitz, S. Pollock (2002).

Understanding Confidentiality and

Minor Consent in California: An Adolescent Provider Toolkit. San Francisco, CA:

Adolescent Health Working Group, San Francisco Health Plan.

HOW TO OBTAIN A COPY

OF THIS TOOLKIT

ADOLESCENT HEALTH

WORKING GROUP

SUGGESTED CITATION

SAN FRANCISCO HEALTH PLAN

Adolescent Health Working Group

San Francisco, CA

San Francisco Health Plan

San Francisco, CA

Dear Colleagues:

We are pleased to present you with Understanding Confidentiality and Minor Consent in

California: An Adolescent Provider Toolkit. This is one chapter of a larger project, The

Adolescent Provider Toolkit, made possible through the generous support of The

California Endowment and our close collaboration with the San Francisco Health Plan

(SFHP). The Toolkit contains resources to help health care providers better meet the

needs of adolescent patients.

Adolescents list concerns about confidentiality as the number one reason they might

forgo medical care. A young person is more likely to disclose sensitive information if he

or she is provided with confidential services and has time alone with the provider.

However, providers indicate that they are mystified and confused by the various confi-

dentiality and minor consent laws and about their reporting responsibilities. This toolkit,

compiled by a multi-disciplinary group of lawyers, health care providers, and youth

advocates, strives to clarify these issues.

Designed for busy providers, the Toolkit includes materials that you are free to copy and

distribute to your adolescent patients and their families or to hang in waiting and exam

rooms. In addition, we will soon have a link to an online confidentiality training on our

website, which you will be able to access without charge.

We would like to thank The California Family Health Council and the California

Adolescent Health Collaborative for their assistance with the printing and distribution of

this resource.

If you have questions regarding the Toolkit or its accompanying trainings and resources,

please call the Adolescent Health Working Group at (415) 576-1170.

Regards,

Marlo Simmons, MPH, Program Coordinator

Adolescent Health Working Group

Janet Shalwitz, MD, Director

Adolescent Health Working Group

Karen Smith, MD, Medical Director

San Francisco Health Plan

We would like to extend our sincerest thanks to members of the Toolkit Advisory

Council for their time, energy, dedication and unwavering commitment to the health of

adolescents.

Valerie Brown, MSW– New Generation Health Center

Amanda Goldberg – San Francisco Unified School District

Eric Hernandez, RD – Child Health and Disability Project

David Knopf, MSW MPH – UCSF Division of Adolescent Medicine

Nancy Lewis, FNP – Huckleberry’s Cole Street Clinic, SFDPH

Caroline Miranda, LCSW – New Generation Health Center

Erica Monasterio, FNP – UCSF Division of Adolescent Medicine

Payal Patel – SFGH Child and Adolescent Services, Department of Psychiatry

Patricia Peretz – Jewish Vocational Services

Michelle Persha, MPH – San Francisco Health Plan

Naomi Schapiro, PNP – Valencia Health Services

Anita Shankar, MPH – Health Initiatives For Youth

Karen Smith, MD – San Francisco Health Plan

Lisa Stone - SFGH Child and Adolescent Services, Department of Psychiatry

Kelly Wong, MD – Pediatrician, Private Practice

We would also like to thank the following individuals and organizations for contributions

of their experience, ideas, and tools.

Tanene Allison – Adolescent Health Working Group

Renee Cheney-Cohen – Child Health and Disability Prevention Program

Natalie Combs

Abigail English, JD- Center for Adolescent Health and the Law

Rebecca Gudeman, JD, MPA – National Center for Youth Law

Mary Isham, RN

Dan Leonard

– San Francisco HealthCorps

Yoshiko Ogino

Elizabeth Ozer, PhD

– UCSF Division of Adolescent Medicine

Jordon Zioni – Illustrations

ACKNOWLEDGEMENTS

THE ADOLESCENT

PROVIDER TOOLKIT

ADVISORY COUNCIL

The Adolescent Health Working Group gratefully acknowledges The California Endowment for

generously supporting the production of this toolkit.

Confidentiality

TABLE OF CONTENTS

California Minor Consent Laws: Who Can Consent

for What Services and Providers’ Obligations (Chart) ............................................A-1

When am I Required to Report the Sexual Activity of Minors

to Children’s Protective Services or Police in California? (Chart) ..........................A-2

Confidentiality and Minor Consent Q&A ...............................................................A-3

Mandated Reporting Q&A .......................................................................................A-4

Checklist – Is Your Office/Clinic Confidentiality Conscious? ................................A-5

Tips for Protecting Youth Confidentiality in Your Practice......................................A-6

Performing an Atraumatic “Parentectomy”..............................................................A-7

Financing Sensitive Services: A Guide for Adolescent Health Care Providers.......A-8

Consent and Confidentiality Tips for Teens.............................................................A-9

Consent and Confidentiality Letter from Providers to Parents and Guardians ....A-10

Caregiver’s Authorization Affidavit Form..............................................................A-11

Confidential Health Care for Adolescents: Position Paper of the

Society for Adolescent Medicine ...........................................................................A-12

Research on Providing Confidential Care to Adolescents (Summary)..................A-13

Health Information Portability and Accountability Act (Summary)

Federal Policy Agenda: The HIPAA Medical Privacy Regulations .......................A-14

Internet Resources for Providers ............................................................................A-15

MODULE ONE:

Tips, Tricks,

and Tools

Resources

Adolescent Provider Toolkit

* Please copy and distribute these handouts to teens and their caregivers.

Spanish and Chinese versions are available online at www.ahwg.net or

www.sfhp.net or by calling 415-576-1170.

Adolescent Health Working Group, 2002

Adolescent Provider Toolkit

CALIFORNIA MINOR CONSENT LAWS

Who Can Consent For What Services And Providers’ Obligations

MINORS OF ANY AGE

MAY CONSENT

LAW

CONFIDENTIALITY AND/OR

INFORMING OBLIGATION OF

THE HEALTH CARE PROVIDER

PREGNANCY

CONTRACEPTION

ABORTION

“A minor may consent to medical care relat-

ed to the prevention or treatment of preg-

nancy,” except sterilization. (Cal. Family

Code § 6925)

A minor may receive birth control without

parental consent. (Cal. Family Code § 6925)

A minor may consent to an abortion without

parental consent and without court permis-

sion. (American Academy of Pediatrics v.

Lungren 16 Cal.4th 307 (1997))

A minor who has a condition or injury

which is considered an emergency but

whose parent or guardian is unavailable to

give consent is permitted to give consent for

medical services. (Cal. Business and

Professions Code § 2397)

A minor who may have been sexually

assaulted or raped may consent to medical

care related to the diagnosis, treatment and

the collection of medical evidence. (Cal.

Family Code § 6928)

“A physician and surgeon or dentist or their

agents . . . may take skeletal X-rays of the

child without the consent of the child's par-

ent or guardian, but only for purposes of

diagnosing the case as one of possible child

abuse or neglect and determining the extent

of.” (Cal Penal Code § 11171)

The health care provider is not permitted to

inform a parent or legal guardian. (Cal. Health

& Safety Code §§ 123110(a) and 123115(a))

The health care provider is not permitted to

inform a parent or legal guardian. (Cal. Health

& Safety Code §§ 123110(a) and 123115(a))

The health care provider is not permitted to

inform a parent or legal guardian.

(Cal. Health & Safety Code §§ 123110(a) and

123115(a))

The health care provider shall inform the

minor’s parent or guardian.

The health care provider must attempt to con-

tact the minor’s parent/guardian and must note

the day and time of the attempted contact and

whether it was successful. This provision does

not apply if the treating professional reason-

ably believes that the parent/guardian commit-

ted the rape or assault.

(Note: This provision does not apply if the

minor is over 12 and treated for rape. See

“Rape” below.)

Neither the physician-patient privilege nor the

psychotherapist-patient privilege applies to

information reported pursuant to this law in

any court proceeding.

EMERGENCY MEDICAL

SERVICES*

*An emergency is “a situation . . . requiring

immediate services for alleviation of severe

pain or immediate diagnosis of unforesee-

able medical conditions, which, if not imme-

diately diagnosed and treated, would lead to

serious disability or death”

(Cal. Code Bus. & Prof. 2397 (c)(2)).

SEXUAL ASSAULT AND

RAPE SERVICES

**Rape requires the act on non-consensual

sexual intercourse.

**For the purposes of minor consent alone,

sexual assault includes acts of rape, oral

copulation, sodomy, and other violent

crimes of a sexual nature.

SKELETAL X-RAY TO

DIAGNOSE CHILD ABUSE

OR NEGLECT*

* The provider does not need the minor’s

or her parent’s consent to perform a

procedure under this section.

(Continued on next page)

A-1

NATIONAL CENTER FOR YOUTH LAW, www.youthlaw.org, revised: April 2002

MINORS 12 YEARS OF AGE

OR OLDER MAY CONSENT

LAW

CONFIDENTIALITY AND/OR

INFORMING OBLIGATION OF

THE HEALTH CARE PROVIDER

OUTPATIENT MENTAL

HEALTH SERVICES*

* This section does not authorize a minor to

receive convulsive therapy, psychosurgery

or psychotropic drugs without the consent

of a parent or guardian.

MENTAL HEALTH TREATMENT:

The health care provider is required to involve

a parent or guardian unless the health care

provider decides that involvement is inappro-

priate. This decision must be documented in

the minor’s record.

SHEL

TER:

Although minor may consent to service, the

shelter must use its best efforts based on

information provided by the minor to notify

parent/guardian of shelter services.

(Note: California law gives health care

providers the right to refuse access to

records anytime the health care provider

determines that access to the patient

records requested by the [parent/guardian]

would have a detrimental effect on the

provider's professional relationship with

the minor patient or the minor's physical

safety or psychological well-being. The

decision of the health care provider as to

whether or not a minor's records are avail-

able for inspection under this section shall

not attach any liability to the provider,

unless the decision is found to be in bad

faith. (Cal. Health & Safety Code §

123115(a)(2))

The health care provider is not permitted to

inform a parent or legal guardian without

minor’s consent.

The provider can only share the minor’s med-

ical records with the signed consent of the

minor. (Cal. Health & Safety Code §§

123110(a) and 123115(a))

DIAGNOSIS AND/OR

TREATMENT FOR

INFECTIOUS, CONTAGIOUS

COMMUNICABLE DISEASE,

AND SEXUALLY

TRANSMITTED DISEASES.

Adolescent Health Working Group, 2002

A-1

Adolescent Provider Toolkit

(Continued on next page)

“A minor who is 12 years of age or older may

consent to mental health treatment or counsel-

ing on an outpatient basis, or to residential

shelter services, if both of the following

requirements are satisfied: (1) The minor, in

the opinion of the attending professional per-

son, is mature enough to participate intelli-

gently in the outpatient services or residential

shelter services. (2) The minor (A) would

present a danger of serious physical or mental

harm to self or to others without the mental

health treatment or counseling or residential

shelter services, or (B) is the alleged victim of

incest or child abuse.” (Cal. Family Code §

6924)

“A minor who is 12 years of age or older and

who may have come into contact with an

infectious, contagious, or communicable dis-

ease may consent to medical care related to

the diagnosis or treatment of the disease, if

the disease or condition is one that is required

by law or regulation adopted pursuant to law

to be reported to the local health officer, or is

a related sexually transmitted disease, as may

be determined by the State Director of Health

Services.”(Cal. Family Code § 6926)

A minor must be at least 12 years of age to

request testing or treatment for sexually trans-

mitted diseases (including HIV/AIDS). (Cal.

Family Code § 6926)

NATIONAL CENTER FOR YOUTH LAW, www.youthlaw.org, revised: April 2002

DRUG AND ALCOHOL

ABUSE TREATMENT

MINORS 12 YEARS OF AGE

AND OLDER MAY CONSENT

LAW

CONFIDENTIALITY AND/OR

INFORMING OBLIGATION OF

THE HEALTH CARE PROVIDER

AIDS/HIV TESTING AND

TREATMENT

A minor 12 and older is competent to give

written consent for an HIV test. (Cal. Health

and Safety Code § 121020)

“A minor who is 12 years of age or older

may consent to medical care and counseling

relating to the diagnosis and treatment of a

drug or alcohol related problem.”(Cal.

Family Code §6929(b))

However, “this section does not authorize a

minor to receive replacement narcotic abuse

treatment . . . without the consent of the

minor's parent or guardian.” (Cal. Family

Code § 6929(e))

The health care provider is not permitted to

inform a parent or legal guardian without

minor’s consent.

The provider can only share the minor’s

medical records with the signed consent of

the minor. (Cal. Health & Safety Code §§

123110(a) and 123115(a))

Any program regulated or directly or indi-

rectly funded by the federal government

MAY NOT reveal any information to parents

without the minor’s written consent.

Programs include those licensed under a fed-

eral agency, registered with Medicare, those

receiving federal funds of any kind, or those

allowed to receive tax deductible donations

from the IRS or with tax exempt status.

For all other programs, “the treatment plan

of a minor authorized by this section shall

include the involvement of the minor's par-

ent or guardian, if appropriate, as deter-

mined by the professional person or treat-

ment facility treating the minor. The profes-

sional person providing medical care or

counseling to a minor shall state in the

minor's treatment record whether and when

the professional person attempted to contact

the minor's parent or guardian, and whether

the attempt to contact the parent or guardian

was successful or unsuccessful, or the reason

why, in the opinion of the professional per-

son, it would not be appropriate to contact

the minor's parent or guardian.” (Cal. Family

Code § 6929(c))

(Note: California law gives health care

providers the right to refuse access to

records anytime the health care provider

determines that access to the patient

records requested by the [parent/

guardian] would have a detrimental effect

on the provider's professional relationship

with the minor patient or the minor's

physical safety or psychological well-

being. The decision of the health care

provider as to whether or not a minor's

records are available for inspection under

this section shall not attach any liability to

the provider, unless the decision is found

to be in bad faith. (Cal. Health & Safety

Code § 123115(a)(2))

Adolescent Health Working Group, 2002

A-1

Adolescent Provider Toolkit

(Continued on next page)

NATIONAL CENTER FOR YOUTH LAW, www.youthlaw.org, revised: April 2002

MINORS MUST BE 15

YEARS OF AGE OR OLDER

LAW

CONFIDENTIALITY AND/OR

INFORMING OBLIGATION OF

THE HEALTH CARE PROVIDER

GENERAL MEDICAL CARE

“A minor may consent to the minor's medical

care or dental care if all of the following con-

ditions are satisfied: (1) The minor is 15

years of age or older. (2) The minor is living

separate and apart from the minor's parents

or guardian, whether with or without the con-

sent of a parent or guardian and regardless of

the duration of the separate residence. (3)

The minor is managing the minor's own

financial affairs, regardless of the source of

the minor's income.” (Cal. Fam. Code §

6922(a))

“A physician and surgeon or dentist MAY,

with or without the consent of the minor

patient, advise the minor's parent or guardian

of the treatment given or needed if the physi-

cian and surgeon or dentist has reason to

know, on the basis of the information given

by the minor, the whereabouts of the parent

or guardian.” (Cal. Fam. Code § 6922(c))

MINOR MUST BE

EMANCIPATED

(GENERALLY 14 YEARS OF

AGE OR OLDER)

LAW

CONFIDENTIALITY AND/OR

INFORMING OBLIGATION OF

THE HEALTH CARE PROVIDER

GENERAL MEDICAL CARE

An emancipated minor may consent to med-

ical, dental and psychiatric care. (Ca. Family

Code § 7050(e)).

The health care provider is not permitted to

inform a parent or legal guardian without

minor’s consent.

The provider can only share the minor’s

medical records with the signed consent of

the minor. (Cal. Health & Safety Code §§

123110(a) and 123115(a))

MINORS 12 YEARS OF AGE

OR OLDER MAY CONSENT

LAW

CONFIDENTIALITY AND/OR

INFORMING OBLIGATION OF

THE HEALTH CARE PROVIDER

RAPE

“A minor who is 12 years of age or older

and who is alleged to have been raped may

consent to medical care related to the diag-

nosis or treatment of the condition and the

collection of medical evidence with regard

to the alleged rape.” (Cal. Family Code

6927)

The health care provider is not permitted to

inform a parent or legal guardian without

minor’s consent.

The provider can only share the minor’s

medical records with the signed consent of

the minor. (Cal. Health & Safety Code §§

123110(a) and 123115(a))

Adolescent Health Working Group, 2002

A-1

Adolescent Provider Toolkit

A minor is emancipated if:

• She/he has entered into a valid marriage,

whether or not the marriage has been dis-

solved;

• She/he is on active duty with the armed

forces; or

• She/he has received a declaration of eman-

cipation from a court.

(Cal. Family Code §§7002, 7050(e))

NATIONAL CENTER FOR YOUTH LAW, www.youthlaw.org, revised: April 2002

Adolescent Provider Toolkit

WHEN AM I MANDATED TO REPORT THE SEXUAL

ACTIVITY OF MINORS TO CHILDREN’S PROTECTIVE

SERVICES OR POLICE IN CALIFORNIA?

If a minor has consensual sexual intercourse

with an older partner, is a report mandated?

What other sexual activity must be

reported by a mandated reporter?

Mandated reporters must report sexual intercourse or other sexual activity with a minor which is coerced,

exploitative, or based on intimidation, regardless of claimed consent by the minor.

Additionally, mandated reporters must report other sexual activity (lewd and lascivious acts) when a minor is 14 or

15 and the partner is more than 10 years older, or when a minor is under 14 and the partner is over 14, regardless of

claimed consent by the minor.

Adolescent Health Working Group, 2002

A-2

Adapted by David Knopf, LCSW, from: An Analysis of Assembly Bill 327: New California Child Abuse Reporting Requirements

for Family Planning Providers, by Catherine Teare and Abigail English, National Center for Youth Law. (May 1998) Available at

http://www

.youthlaw.org/AB327.pdf.

Note: Providers have no legal obligation to ask about partner’s age.

* This worksheet is not intended to be a complete review of all California child abuse reporting laws.

A-3

Adolescent Provider Toolkit

CONFIDENTIALITY AND MINOR CONSENT Q&A

What are the services a

minor can consent to?

See Chart A-1 “CALIFORNIA MINOR CONSENT LAWS: Who can

consent for what services and providers’ obligations.”

If a minor cannot give con-

sent to health care, who

(besides a parent) can give

it for them?

Adult Caretaker: With letter from parent, or with caregiver consent affidavit

Guardian: With court order granting guardianship

Court: Minors 16 and over whose parents are unavailable

Juvenile court: Minor who is a dependent of court

Foster Parent: Only with dependency court permission

Emergency: Consent not required in an emergency

How far should I go when

trying to reach a parent?

When parental consent is necessary in order to provide a service, the

provider must obtain that consent. If the provider is unable to reach a parent

and believes that treatment must be provided immediately, the provider

should proceed if the youth’s medical condition qualifies as an emergency.

The provider should clearly document his/her actions and decisions and

rationale for treatment or interventions.

Can consent be given

verbally?

California statutes do not specifically require that consent be written.

Often, for routine uncomplicated care, providers feel comfortable with ver-

bal consent. In these cases, it is clear that the person giving consent under-

stands the risks and consequences of the procedure and that the verbal com-

munication is documented in the medical record. If the treatment is more

complicated, the provider may want a signed consent form to be sure that

the person providing consent is providing “informed consent” and under-

stands the ramifications of the procedures performed. Health care providers

should establish an office policy to provide all staff guidance.

If parents give consent to

treatment, does that give

them the right to look over

medical records?

The general rule is that parents have a right to see medical records if the

parents consented to the treatment.

HOWEVER, California law gives health care providers the right to refuse

access to records anytime the health care provider determines that access to

the patient records would have a detrimental effect on the provider’s profes-

sional relationship with the minor patient or the minor’s physical or psycho-

logical well-being. (Cal. Health and Safety Code § 123115(a)(2)).

The health care provider is not liable for denying access to records under

this provision if the decision to deny access was made in good faith.

When the youth has the

right to confidential care,

what do I do if I’m

uncomfortable NOT

telling parents?

If a minor has the legal right to confidential care, a provider must abide by

that right or risk liability or other legal sanction. There are a few minor

consent statutes that grant the health provider the right to decide whether

contacting a parent is appropriate or necessary even over the minor’s objec-

tion. One example is the minor consent drug treatment statute. See the

Chart A-1 confidentiality column for statutes that allow providers to share

with parents over the minor's objection. In those cases and no others, a

provider can rely on their professional judgment to decide whether to share

information with parents.

Providers are not legally obligated to provide services to which they are

morally or ethically opposed. In such circumstances, the provider should

refer the adolescent to another provider, clinic, or program who can better

meet the teen’s health care needs.

TIP SHEET

FOR PROVIDERS

A-3

Adolescent Provider Toolkit

TIP SHEET

What if the minor does not

SEEM competent to make

his or her own decisions?

(low IQ, drug use, adult

influence)

A patient is competent if the patient (1) understands the nature and con-

sequence of his/her medical condition and the proposed treatment and (2)

can communicate his/her decision.

Providers can make their own assessment of a patient’s competency and

do not need a judicial ruling or psychiatric diagnosis in order to find a

patient incompetent. When assessing whether the patient understands the

nature and consequences of his/her medical condition (and can communi-

cate his/her decision) take into account the following:

(1) Always start with the presumption that a patient is competent.

(2) Minority age alone is not a sufficient basis for determining if some-

one is incompetent. The law specifically deems minors capable of

providing consent in certain medical situations.

(3) Physical or mental disorders alone are not a sufficient basis for

finding incompetency.

(4) The nature and consequence of the medical condition must be

explained in terms a minor would understand.

(5) Believing that the patient is making an unwise or “wrong” medical

decision is not a sufficient basis for finding the patient incompetent.

(6) Competency is situation specific. A minor deemed incompetent in

one situation may not be considered incompetent in all situations.

CONFIDENTIALITY AND MINOR CONSENT Q&A

FOR PROVIDERS

A-3

Adolescent Provider Toolkit

I know that minors over 12

can consent to their own

mental health care when

they are mature enough to

participate in the service

and the minor would

present “a danger or

serious physical or mental

harm to self or others

without the mental health

treatment.” But, what is

“serious harm?”

There is no statute or regulation that defines the term “serious harm”.

The interpretation of this term is left to the discretion and professional

judgment of the provider. We recommend that you develop guidelines for

your staff to ensure consistency in your office/clinic/agency. The San

Francisco Department of Public Health (SFDPH) policy uses the Global

Assessment of Functioning (GAF) scale to assess psychological and

social functioning. According to SFDPH, a score of <60 indicates symp-

toms and level of functioning that satisfies the definition of “serious dan-

ger of physical or mental health harm.” (Lubosky, L. “Clinicians’

Judgments of Mental Health,” Archives of General Psychiatry, 7: 407-

417, 1962)

How can we provide confi-

dential care when the

patient’s health plan sends

Explanation of Benefits

(EOBS), bills, or surveys

home after a visit?

If you know that a health plan will automatically send out materials to

your patient you can do the following:

(1) Become a Family PACT provider and bill for services through

this program.

(2) Urge your patient to sign-up for the MediCal Minor Consent program

and bill for services through this program.

(3) Refer your patients to Family PACT or MediCal Minor Consent

providers. See Chart A-7, “Financing Tips for Providing Confidential

Teen Services”

(5) Contact the patient’s health plan and let them know your concerns.

A-4

Adolescent Provider Toolkit

TIP SHEET

MANDATED REPORTING Q&A

FOR PROVIDERS

Who is a Mandated

Reporter?

Why and when am

I required to

make a report?

There is a list of 33 mandated reporters, but those pertaining to adolescent

health services are:

1) Physicians 2) Surgeons 3) Psychiatrists 4) Psychologists 5)

Psychological Assistants 6) Mental Health and Counseling Professionals 7)

Dentists 8) Dental Hygienists 9) Registered Dental Assistants 10) Residents

11) Interns 12) Podiatrists 13) Chiropractors 14) Licensed Nurses 15)

Optometrists 16) Marriage, Family and Child Counselors, Interns and

Trainees 17) State and County Public Health Employees 18) Clinical Social

Workers 19) EMT's and Paramedics 20) Pharmacists

The California Child Abuse and Neglect Reporting Act created a set of

state statutes that establish the whys, whens and wheres of reporting child

abuse in California.

“Mandated reporters” are required to make a child abuse report anytime, in

the scope of performing their professional duties, they discover facts that

lead them to know or reasonably suspect a child is a victim of abuse.

Reasonable suspicion of abuse occurs when “it is objectively reasonable for

a person to entertain a suspicion, based upon facts that could cause a rea-

sonable person in a like position, drawing when appropriate on his or her

training and experience, to suspect child abuse or neglect.”

The Act requires professionals to use their training and experience to evalu-

ate the situation; however, “nothing in the Act requires professionals such

as health practitioners to obtain information they would not ordinarily

obtain in the course of providing care or treatment. Thus, the duty to report

must be premised on information obtained by the health practitioner in the

ordinary course of providing care and treatment according to standards pre-

vailing in the medical profession.” (People v. Stockton Pregnancy Control

Medical Clinic, 203 Cal.App.3d 225, 239-240, 1988)

The pregnancy of a minor in and of itself does not constitute a basis for a

reasonable suspicion of sexual abuse. A child who is not receiving medical

treatment for religious reasons shall not be considered neglected for that

reason alone.

What about the right of

patient confidentiality?

Child Abuse reporting is one of the few exceptions to patient confidentiali-

ty. Reporters do not need the minor or parent’s consent to share the other-

wise confidential information necessary to make a report. The Child Abuse

Reporting Act specifically exempts reporters from any liability if they make

a good faith report of abuse.

When does a mandated

reporter have to report

sexual activity?

See Chart A-2 “ When am I Mandated To Report The Sexual Activity of

Minors to Children’s Protective Services or Police in California?”

A-4

Adolescent Provider Toolkit

MANDATED REPORTING Q&A

FOR PROVIDERS

How do I make a report?

1. First, call the Department of Social Services immediately (in San

Francisco, 415-558-2650). If you are unsure whether you need to report,

call this number for more information. If the young person lives outside

of San Francisco, call the county where he or she lives. If the place of

residence and place of abuse are not the same, you must report in both

counties. Let the reporter know this information at the beginning of your

report.

2. You must file a written report (DOJ form SS 8572) within 36 hours of

the verbal report. See an example of the report form on the back of

this page.

What will I report?

1. Your name, although this is kept confidential except in certain, limited,

situations.

2. The child’s name

3. The present location of the child

4. The nature and extent of the injury

5. Any other information, including that which led you to suspect child

abuse, requested by the child protective agency

6. If the child does not feel safe returning to the place of abuse or if he or

she is in immediate danger, report this information as well.

What happens to the

reports?

1. The report will be investigated either by the local law enforcement

agency or by the child protective services agency.

2. The report will be assessed as to whether there is a need for immediate

action.

3. High risk factors will be considered to determine whether immediate

face-to-face contact is required (ex. Direct interviews with anyone who

might provide more information on the situation.)

4. The report will be determined to be either

a. Unfounded (false, inherently improbable, to involve accidental injury,

or not to constitute child abuse)

b. Substantiated (constitutes child abuse or neglect)

c. Inconclusive (not unfounded, but the findings are inconclusive and

there is insufficient evidence to determine whether child abuse or

neglect has occurred)

What happens if the report

is not unfounded?

1. It will be forwarded to the Child Abuse Central Index and investigation

will continue.

2. The child may be taken into protective custody.

3. The case can be officially opened and regular in-home supervision and a

number of services are provided.

Will I be told about the

status of the report?

The Child Protective Agency is required to provide mandated reporters with

feedback about the report and investigation. It might be necessary to be

proactive in this situation by calling the Department of Social Services.

Is there a statute of

limitations?

No. If an individual under 18 years old tells you about abuse, even if it

occurred when he or she was a young child, you must report it. Other agen-

cies will decide whether the case should be pursued.

A-4

Adolescent Provider Toolkit

Sources:

The Office of the Attorney General, Child Abuse Prevention Handbook, http://caag.state.ca.us/cvpc/main_pub_videos.html

Health Initiatives for Youth, Adolescent Provider’s Guide, 1998.

San Francisco Child Abuse Council, A Training Curriculum for Mandated Reporters on

the California Child Abuse Reporting Law, 1995.

THIS IS AN EXAMPLE ONLY

OBTAIN COPIES FROM THE

DEPARTMENT OF SOCIAL SERVICES

TIP SHEET

CHECKLIST

IS YOUR OFFICE CONFIDENTIALITY CONSCIOUS?

Adolescents tend to underutilize existing health care resources. The issue of confidentiality

has been identified by both providers and youth as a significant access barrier to health

care.

To support the promotion of adolescent care, please take a few moments to assess your

office in determining whether it is confidentiality conscious. Creating a safe environment for

teenagers to discuss issues concerning their health will facilitate the best possible care and

counseling to respond to their needs.

Do you have an office policy about confidential issues pertaining to

youth and their families?

Is it the usual practice in your clinic to allow adolescents and parents to

talk separately with the health care providers about their concerns?

Do you educate your members and staff regarding the California laws

that specifically pertain to adolescents and their right to receive care

without their parent or guardian’s consent? (Please see “Summary of

Legal Consent Requirements for Medical Treatment of Minors”, includ-

ed in this packet.)

Does the atmosphere (pictures, wallpapers, etc.) create a safe and

comfortable environment for teens to discuss private concerns regarding

their health?

Do you display and/or offer educational materials on confidentiality to

adolescent patients and/or parents?

Are you and your staff careful not to discuss patient information in open

environments (elevators, hallways or waiting rooms)?

When collecting an adolescent patient’s medical history or discussing

anything sensitive, do you make sure all doors are closed?

Do you ask if your adolescent patient feels comfortable receiving

messages or mail from you using the contact information they provide?

At the beginning of the appointment, do you explain the parameters of

confidentiality between you, your patients, and his/her parents?

Do you discuss situations in which you may need to breach

confidentiality?

A-5

Adolescent Provider Toolkit

TIPS FOR PROTECTING YOUTH CONFIDENTIALITY

While adolescent confidentiality laws provide us with formal (although often confusing) guidelines

for ensuring confidentiality of our teen patients, it is frequently the small stuff that can seriously com-

promise an adolescent patient’s confidence in his/her provider. The following is a list of tips – some

obvious, some not – for preserving patient privacy and minimizing embarrassment in a clinic setting.

1. Do not discuss patient information in elevators,

hallways, or waiting rooms.

If an adolescent patient overhears this conversation, he

or she may assume that you will also discuss his or her

case in an open environment.

2. Do not collect an adolescent patient’s medical

history or reason for visit in an open area.

It will be difficult for a teenager to discuss his or her

personal issues honestly if s/he thinks other people

will overhear.

3. When an adolescent patient gives you a contact

phone number, make sure that you can leave

messages.

If you cannot, ask for an alternative number at which

you can leave messages if necessary.

4. Likewise, do not send mail (such as appointment

reminders and bills) home unless you have dis-

cussed whether or not the patient feels comfort-

able receiving mail from you at his or her home.

If he or she does not wish to receive mail at home, try

to work out an arrangement whereby mail is picked up

at the clinic. TIP: Some clinics have check boxes on

charting forms indicating a teen’s preference regarding

mail and phone calls. Other clinics clarify what kind of

message might be ok to leave at a teen’s contact num-

ber (e.g. “Tina” called).

5. When discussing anything sensitive, such

as sexual history, weight, or substance use,

make sure all doors are closed.

A patient in the waiting room may overhear a discus-

sion and thus be more reluctant to share information

when he or she sees the health care provider.

6. Think about how your clinic administers

paperwork to patients.

Are you asking clients to fill out forms such that other

people might be able to read their answers? Give out

a clipboard with the forms; also make sure that there is

enough room in which to complete forms with some

degree of privacy.

7. Make sure that any clinic literature your clinic or

practice distributes is small enough to fit into

a purse or wallet.

Asking a teenager to leave with bright, large brochures

on a sensitive subject, such as gonorrhea, will cause

more embarrassment than anything else. These types

of materials should be offered to teens in private.

8. At the beginning of the appointment, make it clear

that a provider is required to maintain patient

confidentiality, except under very specific

circumstances.

Periodically remind the patient that anything s/he says

about sex, drugs, and feelings will not leave the room.

A-6

Adolescent Provider Toolkit

TIP SHEET

FOR PROVIDERS

PERFORMING AN ATRAUMATIC

“PARENTECTOMY”

Or, how do I provide adolescent-sensitive services when a parent or

caregiver is present?

Attempting to provide confidential services can cause great discomfort for youth,

parents, and providers if it is not handled in a sensitive manner. The following are

recommendations that can facilitate a smooth transition from the parent-accompa-

nied visit to the confidential adolescent visit.

ROADMAP

• Lay out the course of the visit…

for example, “We will spend some time talking together about Joseph’s health

history and any concerns that you or he might have, and then I will also

spend some time alone with Joseph. At the end of the visit, we will all meet

together again to clarify any tests, treatments or follow-up plans.”

• Explain your office/clinic policy regarding adolescent visits.

Review your policy verbally early in the interaction with the youth and parent.

Acknowledge that the youth is a minor and therefore has specific legal rights

related to consent and confidentiality.

Introduce the concept of fostering adolescent self-responsibility and

self-reliance.

Reinforce that this policy applies to all adolescents in your practice or clinic

(in other words, this is not specific to YOUR child).

• Validate the parental role in their child’s health and well-being.

• Elicit any specific questions or concerns from the parent.

• Direct questions and discussion to the youth while attending to and validating

parental input.

REMOVE

• Invite the parents to have a seat in the waiting area, assuring them that you will

call them prior to closing the visit

REVISIT

• Once the parent is out of the room, revisit issues of consent and confidentiality

with the youth, including situations when confidentiality has to be breached

(suicidality, abuse, etc.).

• Revisit areas of parental concern with the youth and obtain the youth’s

perspective.

• Conduct the psycho-social interview and physical exam (ascertain whether youth

desires parent’s presence during PE and accommodate youth’s preference).

• Clarify what information from the psycho-social interview and PE the youth is

comfortable sharing with parent.

REUNITE

• Invite the parent back to close the visit with both parent and youth.

• A young person is more likely to

disclose sensitive information to a

health care provider if the youth is

provided with confidential servic-

es, and has time alone with the

provider to discuss his/her issues.

• Remember that even when the

chief complaint is acne or an ear-

ache, there may be an underlying

issues on the part of the adoles-

cent (such as the need for a preg-

nancy test or contraception),

which will only surface when

provided confidential services.

EXTRA NOTES:

Additional ways to explain your

policy regarding confidentiality:

• A letter to all new adolescent

patients and their parents, and

all parents and patients on the

youth’s 11th or 12th birthday

explaining your policy. This

will help families to come

prepared for the adolescent

and the provider to spend

some time alone.

• Posters in the waiting area

explaining adolescent consent

and confidentiality and your

policy as it relates to the law

can also help lay groundwork

that the provider will be spending

time alone with the youth.

TIPS...

A-7

Adolescent Provider Toolkit

TIP SHEET

FOR PROVIDERS

MEDI-CAL MINOR CONSENT

FAMILY PACT

SERVICES COVERED

• Pregnancy and pregnancy-related services,

including abortion

• Family planning (birth control), including

emergency contraception

• Drug and alcohol counseling and treatment

• Sexually transmitted diseases testing and

treatment

• Sexual assault treatment

12 up to 21

Any income

Client must be a California resident

First name, phone number, address to which

confidential mail can be sent; Social Security

Number is NOT requested.

• Pregnancy testing, counseling, and referral

• Family planning (birth control), including

emergency contraception

• Sexually transmitted diseases testing and

treatment

• Education and counseling about reproductive

health

• HIV testing and counseling

• Referrals for other services

Up to 35 years old.

Up to 200% of poverty level

Client must be a California resident.

No papers required.

CLIENT ELIGIBILITY (Age)

CLIENT ELIGIBILITY (Income)

CLIENT ELIGIBILITY

(Citizenship)

INFORMATION REQUESTED

FROM CLIENT

FINANCING SENSITIVE SERVICES:

A GUIDE FOR ADOLESCENT HEALTH CARE PROVIDERS

Payment for sensitive services (i.e. STD testing and treatment, pregnancy tests, substance use counseling)

can pose an enormous barrier to youth seeking confidential health care. Young people may not have

enough money to pay for the services that they need. Often, they are also worried that if they access a

free or low cost program such as Family PACT or Medi-Cal, their confidentiality will be compro-

mised. It is thus important to understand the laws and policies governing the ways in which young

people can access free or low cost sensitive services.

California State has two programs that reimburse confidential health services for youth: Medi-Cal

Minor Consent and Family PACT (Planning, Access, Care, and Treatment). Below you will find

information on how to become a provider in each of these programs, how to determine youth

eligibility, and how to receive payment for services rendered.

A-8

Adolescent Provider Toolkit

TIP SHEET

FOR PROVIDERS

(Continued on next page)

MEDI-CAL MINOR CONSENT

FAMILY PACT

None

Call or visit your county Social Services office.

A list of local Social Services is available at

www.dhs.ca.gov/mcs/medi-calhome/countylist-

ing1.htm

Contact the Medi-Cal provider support center.

Provider must be a Medi-Cal provider. Call EDS

at 1-800-541-5555 or visit http://files.medi-

cal.ca.gov/pubsdoco/Pubsframe.asp?/hURL=/pu

bsdoco/prov_enroll.asp to download provider

application forms.

Voluntary $5. Client will not be turned away if

s/he does not pay.

Client must visit a Family PACT provider,

who will enroll the youth in the program.

Services can be accessed immediately.

Contact the California Office of Family

Planning at (916) 654-0357.

Call the Family PACT Hotline at

1-800-257-6900 or visit FPACT Provider

Support Services at

http://www.dhs.cahwnet.gov/

pcfh/ofp/FamPACT/ Providers must attend a

one-day orientation program.

CLIENT CO-PAY

HOW A YOUNG PERSON

CAN UTILIZE THIS

PROGRAM

FOR MORE INFORMATION

HOW CAN A CLINIC

BECOME A PROVIDER

KEY DIFFERENCES BETWEEN MEDI-CAL MINOR CONSENT AND FAMILY PACT:

1. While both programs cover pregnancy testing, Family PACT does not cover abortion or care once one is

pregnant. Medi-Cal Minor Consent does.

2. Family PACT covers individuals up to age 35; Medi-Cal Minor Consent up to age 21.

3. Clients must enroll in Family PACT at an FPACT provider’s office. With Medi-Cal Minor Consent,

however, clients enroll with an eligibility worker.

4. For Family PACT, eligible clients are activated for one year following application; for Medi-Cal Minor

Consent, clients must renew eligibility every 30 days.

A-8

Adolescent Provider Toolkit

TIP SHEET

FOR PROVIDERS

TIPS FOR TEENS

The Truth About CONFIDENTIALITY...

What should I talk to the doctor or

nurse about?

You can talk to your doctor or nurse about

ANYTHING! Fill your doctor or nurse in

if you…

• think you might be

pregnant.

• need birth control.

• think you have a sexually transmitted

disease

(STD).

• need information about alcohol, tobacco,

or other drug use.

• want to talk about personal, school, family issues,

or feelings about sex and sexuality.

What will my doctor or nurse tell

my parents?

According to the laws of the State of California, your

doctor or nurse cannot tell your parents or guardians

anything about your exam if you’re seen for any

confidential services. These include care for prob-

lems or concerns in the areas of sexuality, mental

health and substance abuse. You, as a young person,

can consent for care on your own in these areas. You

need your parent or guardian’s consent for other

health services such as physicals and care for colds,

flu, and injuries.

HOWEVER…

Some things cannot remain confidential.

Your health care provider will need to

contact someone else to help if you say…

• you are being

abused, physically and/or

sexually.

• you are going to hurt yourself or someone else.

• you are under 16 and having sex with

someone 21 years or older

• you are under 14 and having sex with

someone 14 years or older.

Even though you don’t have to ask

your parents, it’s a good idea to

talk with them or another adult

you trust about the medical

care you need. We want you to

be safe. If you have any

questions about

confidentiality, please

ask us!

A-9

Adolescent Provider Toolkit

Confidentiality means privacy. It means that when you, as a young person from 12 to 17 years old, talk with your

health care provider about certain issues like sex, drugs, and feelings, he or she will not tell your parents or

guardians what you talk about unless you give your permission.

TIP SHEET

FOR YOUTH

A LETTER FROM YOUR TEEN’S HEALTH CARE PROVIDER

A-10

Adolescent Provider Toolkit

FOR PARENTS AND GUARDIANS

Dear Parent or Guardian,

Now that your son or daughter is a teenager, there are some things I would like to share

with you that are important to provide the best care. Your son or daughter’s body is chang-

ing, and so are his or her feelings. There are many health risks during the teenage years that

we try to prevent, such as accidents, violence, unprotected sex, alcohol and drug use, and

stress.

Some areas of teen health that we may talk about during the appointment are:

It is good to stay close to your child. It is also important for you to allow them some time

alone to talk about their health and changes in their bodies and lives. This will help your

teenager make good decisions. I encourage teenagers to share information about their

health with their parents or guardians. However, there will be some things that your teenag-

er would rather talk about with a doctor, nurse, or counselor. California law allows

teenagers to receive some health care services on their own. Health care providers have to

keep those services CONFIDENTIAL. “Confidential” means I will only share this informa-

tion if a teenager says it’s alright. I will also share this information if someone is in danger.

I can contact you about most of the services your child receives. However, if your teenager

receives the following services, I cannot give you information about these visits without

permission from your son or daughter:

• The prevention or treatment of pregnancy or sexually transmitted diseases (STDs) and

other

contagious diseases

• The diagnosis and treatment of sexual and physical abuse

• Care and counseling for drug or alcohol problems

I ask that you support these rules and help your teen learn to care for their own health

needs. I look forward to providing ongoing medical care for your child. I will be happy to

talk to you about the questions or concerns you may have about this letter and your child’s

health.

• Diet, exercise, and body image

• Fighting, danger, and violence

• Sexuality and sexual behavior

• Safety and driving

• Smoking, drugs, and alcohol

• Working/Jobs

• Depression and stress

• Peer pressure and school

• Dating and relationships

• Family life

A-11

CAREGIVER'S AUTHORIZATION AFFIDAVIT

Use of this affidavit is authorized by Part 1.5 (commencing with section 6550) of Division 11 of the California Family Code.

Instructions: Completion of items 1 - 4 and the signing of the affidavit is sufficient to authorize enrollment of a minor in

school and authorize school-related medical care. Completion of items 5 - 8 is additionally required to authorize any other med-

ical care. Print clearly.

The minor named below lives in my home and I am 18 years of age or older.

1. Name of minor: ____________________________________________________ .

2. Minor's birth date: __________________________________________________ .

3. My name (adult giving authorization): __________________________________ .

4. My home address: _________________________________________________

_________________________________________________

5. ( ) I am a grandparent, aunt, uncle, or other qualified relative of the minor (see

back page of this form for a definition of "qualified relative").

6. Check one or both (for example, if one parent was advised and the other cannot be located):

( ) I have advised the parent (s) or other person (s) having legal custody of the

minor of my intent to authorize medical care, and have received no objection.

( ) I am unable to contact the parent (s) or other person (s) having legal custody of

the minor at this time, to notify them of my intended authorization.

7. My date of birth: ___________________________________

8. My California's drivers license or identification card number:_________________________________

Warning: Do not sign this form if any of the statements above are incorrect, or you will be committing a crime punishable

by a fine, imprisonment, or both.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true

and correct.

Dated: __________________ Signed:______________________________________________________

(Notices on following page)

A-11

Notices:

1. This declaration does not affect the rights of the minor's parents or legal guardian regarding the care, custody, and control of

the minor, and does not mean that the Caregiver has legal custody of the minor.

2. A person who relies on this affidavit has no obligation to make any further inquiry or investigation.

3. This affidavit is not valid for more than one year after the date on which it is executed.

Additional Information:

To Caregivers:

1. “Qualified relative,” for purposes of item 5, means a spouse, parent, stepparent, brother, sister,

stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix

“grand” or “great,” or the spouse of any of the persons specified in this definition, even after the marriage has been terminat-

ed by death or dissolution.

2. The law may require you, if you are not a relative or a currently licensed foster parent, to obtain a foster home license in order

to care for a minor. If you have any questions please contact your local Department of Social Services.

3. If the minor stops living with you, you are required to notify any school, health care provider, or heath care service plan to

which you have given this affidavit.

4. If you do not have the information requested in item 8 (California driver's license or I.D.), provide another form of identifica-

tion such as your social security number or Medi-Cal number.

To School Officials:

1. Section 48204 of the Education Code provides that this affidavit constitutes a sufficient basis for a determination of residen-

cy of the minor, without the requirement of a guardianship or other custody order, unless the school district determines from

actual facts that the minor is not living with the Caregiver.

2. The school district may require additional reasonable evidence that the Caregiver lives at the address provided in item 4.

To Health Care Providers and Health Service Plans:

1. No person who acts in good faith reliance upon a Caregiver's authorization affidavit to provide medical or dental care, without

actual knowledge of facts contrary to those stated on the affidavit, is subject to criminal liability or action, for such reliance if

the applicable portions of the form are completed.

2. This affidavit does not confer dependency for health care coverage purposes.

SOCIETY FOR ADOLESCENT MEDICINE

A-12

Confidential Health Care for Adolescents:

Position Paper of the Society for Adolescent Medicine

Position

The Society for Adolescent Medicine Reaffirms Its Previous

Position that Private and Confidential Health Services Are

Essential for Adolescents.

In order to implement this policy, the Society for Adolescent

Medicine recommends the following:

• Health providers should inform adolescent patients and their

parents, if available, about the requirements of confidentiali-

ty, including a full explanation of what confidential care

entails and the conditions under which confidentiality might

be breached.

• Health providers must remain flexible when delivering

confidential care to adolescents. Blind adherence to absolute

confidentiality, or absence of confidentiality (in deference to

parental wishes), is neither desirable nor required by ethics or

law.

• Health providers should develop a disclosure plan for those

adolescents who are deemed not to have capacity to give

informed consent or for whom disclosure of information to

responsible adults becomes necessary which involves adoles-

cent wishes about the manner in which information is shared.

• Confidentiality considerations regarding record keeping are

necessary. Health providers must consider the manner in

which written and electronic medical records might be avail-

able to parties in ways that verbal communication are not, and

in ways that would be objectionable to adolescent patients.

• Expanded efforts are needed to increase the education of

health professionals regarding the laws and regulations in

their jurisdiction relating to confidentiality and informed

consent for adolescents. In addition, specific training is

needed to increase providers’ skills in effectively and

appropriately incorporating confidentiality into clinical

practice.

• Further research is necessary to evaluate the process of

maintaining confidentiality. These investigations should

include studies of the attitudes of adolescents related to

confidentiality, specific influences of gender and race/ethnic-

ity, provider and parental attitudes about confidentiality, and

the approaches necessary to allow professional practices to

optionally meet ethical and legal requirements.

Background

There is a growing need for education of health professionals

regarding ethical and legal aspects of consent and confidential-

ity. Adolescents are engaging in a variety of health risk

behaviors that should be known to their health providers (1,2).

In addition, the protection of confidentiality within and beyond

the health care setting is becoming more precarious owing to

health care reform, computerization of health records, and

changes in health care administration (3). Results of studies

indicate a lack of consensus among practicing health providers

about confidentiality when treating adolescent patients (4-7).

A recent survey of primary care physicians in California indi-

cates that physicians do not consistently discuss confidentiali-

ty with their adolescent patients and do not distinguish between

unconditional and conditional confidentiality (7). Although

minors’ rights to confidential medical care have expanded over

the past 25 years, these legal prerogatives undergo ongoing

modification. Many states have passed mandatory parental

consent and notification laws, especially related to the

termination of pregnancy. As laws change, it becomes more

difficult for health professionals to maintain familiarity with

current laws determining when adolescents may consent for

confidential medical care. It is unclear if providers understand

these existing laws and policies regarding minor’s consent and

confidentiality (8),(9).

This article defines necessary terms and concepts, address rea-

sons for confidentiality in adolescent health care, reviews legal

guidelines, and provides suggestions for implementation.

Definitions

Confidentiality in a health care setting is defined as an agree-

ment between patient and provider that information discussed

during or after the encounter will not be shared with other par-

ties without the explicit permission of the patient. It is best

classified as a rule of biomedical ethics that derives from the

moral principle of autonomy and accompanies other rules like

promise-keeping, truthfulness and privacy (10).

Privacy means freedom from unsanctioned intrusion. In a

health care setting it involves psychological, social and physi-

cal components in addition to confidentiality (11).

Informed consent describes the process during which the

patient learns the risks and benefits of alternative approaches

to management and freely authorizes a course of action pro-

posed by the clinician. Informed consent has both ethical and

legal derivations. Although usually bound together in clinical

encounters, confidentiality and consent are different.

Confidentiality can occur during an encounter whether or not

specific informed consent for a treatment or intervention is

given. For example, contraceptive options may be confidential-

ly discussed before informed consent is given for any specific

choice.

Under specific legal circumstances, adolescents may receive

A-12

confidential care and may give informed consent for recom-

mended care (12). If the legal circumstances does not justify a

minor’s consent to medical treatment, the minor’s views and

opinions can still be respected by obtaining

assent (13,14).

This is an ethical rather than a legal concept. Seeking the

assent of a minor who is not legally authorized to consent

demonstrates respect for the decision-making skills of a non-

autonomous individual to the extent that he/she is able to par-

ticipate in the decision. This is particularly relevant for adoles-

cents who are cognitively maturing, but below the age of legal

majority and still dependent upon adults for their basic health

care decisions. Respect for the decision-making capabilities of

an adolescent demands both confidentiality and privacy.

Reasons for Confidentiality

The Needs of Clinical Practice

The most practical reason for clinicians to grant confidentiali-

ty to adolescent patients is to facilitate accurate diagnosis and

appropriate treatment. Experienced clinicians recognize that

candid and complete information can be gathered only by

speaking with the adolescent patient alone, and by clarifying

with whom the information will be shared. If an assurance of

confidentiality is not extended, this may create an obstacle to

care since the adolescent may withhold information, delay

entry into care, or refuse care.

A growing body of research has examined whether minors

would seek health care if it were not confidential (15-20). For

example, a study of Massachusetts high school students found

that 25% would forego health care if confidentiality were not

assured (15). In another study, a majority of students reported

they would not go to their private physician for care related to

sexuality, substance abuse or emotional upset, nor would they

seek care for these problems if their parents had to know about

the office visit (19). Thus, most adolescents seek confidential-

ity when questioned about their specific health care needs. (21)

Many other barriers to optimal adolescent health care have

been identified, including inadequate health insurance, lack of

age-appropriate facilities, office policies, lack of training and

sensitivity of physicians and office staff in adolescent issues,

and inadequate physician time (22). These barriers limit the

opportunity for adolescents to discuss important health and

behavioral issues. In a recent California survey, most adoles-

cents reported they were unable to discuss sexual matters with

their physicians, despite recognizing the helpfulness of such

discussions (23). Confidential care, unlike economic and facil-

ity barriers, can be easily addressed, and integrated into clini-

cal practices.

Developmental Needs

Adolescents seek confidentiality for reasons that derive from

their unique developmental circumstance. Some teens fear

parental retribution (24). Others fear damage to reputation and

self-esteem (25). Most adolescents are striving for maturity,

independence and adult status. In fact, most individuals over

age 14 years have the cognitive ability to process medical

information in a manner similar to adults (26).

The developmental needs and abilities of adolescents as well

as the issues under discussion, help shape the physician-patient

relationship (27). For example, sexual behavior and orienta-

tion, are generally felt to be highly personal matters by both

adolescents and adults. Like adults, adolescents seek privacy in

discussing these sensitive topics and may worry about parental

disapproval. The practitioner and parent can help the adoles-

cent develop independent self-care skills for even the most sen-

sitive of issues by allowing the adolescent to practice confi-

dential self-disclosure to the provider.

The degree to which the confidential relationship contributes

to the health of the teenager will depend on each adolescent’s

developmental, medical, and environmental circumstances.

The scope of confidentiality must be flexible and carefully

considered. The clinician should take into account the adoles-

cent’s developmental capabilities, the presenting problem, and

the adolescent’s individual needs. By mid-adolescence, most

teens are able to reason like adults, but because of inexperi-

ence, may require more guidance in medical decision-making.

Previous research has found developmental differences

between younger and older adolescents in understanding con-

fidentiality and whether the explicit discussion of confiden-

tiality facilitates disclosure of personal information (28,29).

For the younger adolescent, the process of building a trusting

relationship and demonstrating that confidentiality will be pre-

served was found to be as important as what was said.

Moreover, Messenger and McGuire (28) conclude that a real

life experience with this process is superior to a verbal expla-

nation. Gender differences have also been demonstrated

(9,28,29). For example, males were found to be more open to

disclosure and less concerned about confidentiality violations

than females. Studies have demonstrated that adolescents of

either gender view confidentiality differently depending upon

the health care setting (e.g., family planning or public health

clinic), where they expect confidentiality, as compared to pri-

vate physician’s offices, where they are less sure if they will be

afforded this practice (15,19).

Moral and Ethical Requirements

Providing confidential care to adolescents is a professional

duty deriving from the moral tradition of physicians and the

goals of medicine. The first references to the principle of med-

ical confidentiality are found in the codes of professional

ethics (30). The fundamental statement on confidentiality in

the Western tradition is embodied in the Hippocratic Oath,

which influenced all subsequent medical ethical reflections on

this matter (31). Two philosophical arguments have been

advanced which justify the principle of medical confidentiali-

ty. The utilitarian argument refers to the consequences of

behavior and states that because confidentiality encourages

patients to fully disclose their symptoms and life circum-

stances, the clinician’s capacity to help them will be enhanced.

Confidentiality allows for beneficence, or the moral duty to

benefit the patient.

The second philosophical argument is based upon the moral-

A-12

ity of the action itself distinguished from its anticipated conse-

quences. In this case, confidentiality concerns basic respect for

adolescent patients as persons, respect for their autonomy and

recognition of their right to privacy. Only recently have these

principles been applied to the medical care of teenagers (32).

This has created a dilemma for professionals who must balance

their interest in protecting the health of their adolescent

patients by providing appropriate, timely, confidential care and

the desires of parents to know about the condition of their

minor children and make decisions regarding their care.

Because adolescents vary in their psychosocial and economic

autonomy, it becomes impossible to apply a single moral pre-

scription in all cases. It is necessary to ground confidentiality

in the moral necessity of respect for the individual while rec-

ognizing that it is permissible to breach confidentiality in

selected instances, and only when certain requisites have been

fulfilled. Should these special circumstances not be respected

because a professional thinks it would be inconvenient or diffi-

cult, a clear moral breach will have occurred in which a physi-

cian places personal needs above those of the patient.

Excessive paternalism results if confidentiality is disregarded

because the physician decides what is “best” for the adolescent

without a strong and persuasive reason.

Paternalism has been defined as either an interference with a

person’s freedom of action (33), as a “refusal to accept or

acquiesce in an individual’s choices, wishes and actions,” (34)

or as an act of coercion (35). Clinicians need to be extremely

cautious when deciding to break confidentiality because it may

seriously jeopardize the provider-patient relationship (36).

However, in cases of suicidal or homicidal ideation or gestures,

serious chemical dependence, the youth’s disclosure of physi-

cal or sexual abuse and life threatening medical conditions

(i.e., eating disorders), it may be necessary to disclose private

information to the adolescent’s caretakers or others. Silber (37)

has proposed that “justified paternalism” in the care of adoles-

cents could be appropriate under these circumstances, provid-

ed two conditions are met: reasonable evidence that an adoles-

cent’s capacity for autonomy is impaired; and, protecting the

adolescent’s life is the central goal. Thus, protecting life out-

weighs the principle of autonomy.

Should the physician encounter a circumstance in which “jus-

tified paternalism” and disclosure better serves the adolescent,

there is still a moral duty to respect the adolescent. This can be

accomplished by explaining the reason for breaching confi-

dentiality and involving the patient in the process of revealing

the confidential information.

Legal Issues and Guidelines

Legal provisions which support confidentiality include, among

others, avoiding embarrassment and humiliation, protecting

personal and family security, and avoiding discrimination or

denial of service (38). For adolescents, legal protection for the

maintenance of confidentiality serves two primary purposes.

The first purpose (as has been discussed) is clinical utility and

encourages them to seek necessary medical care. The second

legal purpose is to grant adult rights to those minors who

deserve them by virtue of their maturity. The minor who has

achieved a level of maturity sufficient to enable him or her to

give informed consent generally is entitled to the associated

privacy of information.

The law has evolved in important ways over the past several

decades in the degree to which it protects, or at least, does not

impede the provision of confidential health services for ado-

lescents. Nevertheless, there continue to be areas in which the

current legal system fails to provide adequate protection, par-

ticularly with respect to current changes in the health care

delivery system, such as the rapid shift to managed care.

Moreover, care management will attempt to standardize health

care delivery methods and might threaten the unique privacy

needs of adolescents in such areas as medical records, care

pathways, and gatekeeper functions.

Sources of the Confidentiality Obligation in the Law

There are numerous sources of the general legal obligation to

maintain the confidentiality of medical information for adoles-

cents (12,38). These sources include federal and state statutes,

constitutional provisions, and regulations, policies, and proto-

cols of federal and state agencies. Many, but not all, of these

provisions have been interpreted in court decisions. In particu-

lar, the concept of the “mature minor” has been developed by

state and federal courts over the past several decades. The con-

cept of the “mature minor” applies to those situations in which

an adolescent has the capacity to give an informed consent and

is being provided with non-complex care that is within the

mainstream of medical practice (39). Thus, the extent to which

the law impedes or facilitates the protection of confidentiality

in adolescent health care depends not only on the consideration

of a broad range of overlapping and interconnected legal pro-

visions, but also on an understanding of how those provisions

have been, or might in the future, be interpreted by the courts.

Confidentiality and Consent

The dual concepts of confidentiality and consent are inextrica-

bly linked in the way the law affects the delivery of health care

to adolescents who are younger than 18 years, the age of major-

ity in almost every state. First, whenever consent for care is

required from a parent or other third party, such as a court or

child welfare agency, it is not possible for complete confiden-

tiality to be maintained. Second, some laws authorizing minors

to consent to their own care also require (or permit) that a par-

ent or another person or entity be informed. Third, some laws

governing the confidentiality and disclosure of medical infor-

mation explicitly rely on the medical consent laws in delineat-

ing who controls the confidentiality of health information for

minors, and even when they do not, the consent laws may pro-

vide implicit support for confidentiality (40).

Generally the law requires the consent of a parent when health

care is provided to a minor child, although there are numerous

exceptions to this requirement (12). Exceptions include med-

ical emergencies, laws which specifically authorize minors to

consent to their own care and care for the “mature minor.”

Consent may also be required from a third party such as a legal

A-12

guardian or conservator, for a severely mentally incapacitated

person who is older than age 18 years.

A legal basis for minors to consent to their own care also pro-

vides a strong foundation for assuring that the care may be con-

fidential. Every state has statutes which authorize minors to

consent to medical care under a variety of circumstances (41-

43). In some statutes, the authorization is based on the minor’s

status such as when the minor is emancipated, married, serving

in the armed forces, pregnant, a parent, or a high school grad-

uate; is living apart from parents; has attained a certain age; or

has qualified as a mature minor. In other statutes, the authori-

zation to consent to health care is based on the type of care

needed, such as contraceptive services; pregnancy related care;

diagnosis and treatment of sexually transmitted disease, human

immunodeficiency virus or reportable diseases; treatment for

drug or alcohol problems; care related to a sexual assault; or

mental health services. These laws reflect policy judgments

that certain minors have attained a level of maturity or autono-

my which makes it appropriate for them to make their own

medical decisions or that adolescents generally are unlikely to

seek certain sensitive but essential services unless they are able

to do so independent of their parents. While not every state has

statutes covering minors in each of the above categories or all

types of “sensitive” services, every state has some of these pro-

visions.

Often the laws which authorize minors to consent to their own

care also explicitly or implicitly restrict the disclosure of that

information without their permission. In addition, other state

laws, such as medical confidentiality statutes, sometimes refer

back to the minor consent provision, specifying that a minor

who has the right to consent also has the right to control the

disclosure of confidential information. Finally, the United

States Supreme Court, in decisions about the extent to which

the constitutional right of privacy protects minors, has made it

clear that when a minor is sufficiently mature to give her own

consent for an abortion she must also be able to choose to seek

an abortion without the knowledge or involvement of her par-

ents, albeit with a judicial order affirming her maturity (44).

Confidentiality and Payment

The relationship between confidentiality and payment for serv-

ices is a very important consideration. The laws which author-

ize minors to consent to their own care generally do not make

any provision for payment for services, and in some cases,

actually relieve parents of financial liability. It may be difficult,

even impossible, to assure full confidentiality unless an ado-

lescent has a way to pay for services, or the services are pro-

vided without charge.

Generally, parents are financially liable for the health care

services provided to their minor children. However, families

often rely on private or public health insurance to pay for part

or all of the cost of care. Adolescents may be eligible to receive

certain services without charge or at an affordable cost in a

variety of settings such as community or migrant health cen-

ters, school-based and school-linked health clinics, and family

planning clinics, among others. Legal provisions applicable to

many of these funding sources do provide some degree of con-

fidentiality protection (43). In some cases, such as federally

funded family planning clinics, there are sliding fee scales

based on income, and adolescents are permitted to qualify

based upon their own income. In the absence of free care or the

ability to pay themselves, adolescents may have to rely on

direct payment for services by their parents or on utilizing their

family’s insurance coverage, if any. The necessity for a parent

to sign an insurance claim in the case of private insurance, or

to furnish a Medicaid card, may dramatically threaten the con-

fidentiality of services. In such circumstances, the informal

agreements reached between provider and the family with

respect to confidentiality assume increased importance.

Protecting Confidentiality in Managed Care Settings

In recent years, there has been a dramatic increase in managed

care, both as a service delivery method and as a financing

mechanism. Increasing numbers of families - both those who

are covered by private insurance and those covered by

Medicaid - are receiving their care in settings such as staff

model health management organization (HMOs) or through

plans which use some form of managed care arrangement to

restrict choice of providers, capitate costs, and perform gate

keeping functions. Each of these situations pose problems for

protecting a minor’s confidentiality. Some adolescents are con-

cerned that when other family members receive care from the

same HMO or from the same primary care provider in a pre-

ferred provider network, confidential information may be

shared with parents. Youth who receive care at sites such as

school-based health clinics which may subcontract with man-

aged care entities, may be concerned about the extent to which

information communicated to the managed care plan will

remain confidential. Unless adolescents can be assured that

confidentiality will be maintained, or have the option of seek-

ing care from other sources, they may avoid utilizing health

services that would be otherwise accessible to them.

Legal Limits of Confidentiality

There are circumstances in which it is neither possible nor

appropriate to maintain the confidentiality of information for

legal and other reasons. These include situations in which the

adolescent poses a severe risk of harm to himself or herself or

to others, and cases of suspected physical or sexual abuse for

which there is a legal reporting requirement. In addition, as

previously mentioned, there are situations in which the law

requires a health professional to notify the parents when a

minor has received care, even care based on her own consent.

The most common situations in which this occurs is with

respect to abortion and drug or alcohol treatment. It should be

remembered that under current constitutional law pertaining to

abortion, if a state requires parental notification, it must also

permit the minor to seek the alternative of court authorization

without parental involvement. Finally, when confidentiality

must be breached for ethical or legal reasons, the adolescent

must be so informed.

A-12

Medical Records

Confidentiality protections apply to written information con-

tained in medical records as well as to information that is com-

municated verbally between an adolescent and a health care

professional. Adult patients, and by extension, mature adoles-

cents who are permitted to consent to their own health care,

should be allowed to review their own medical records and to

protect their medical records from review by others. However,

it is often more difficult to protect the confidentiality of writ-

ten medical records than to do so for verbal communications-

both as a practical matter, and as a result, of certain legal

requirements. As electronic medical records are becoming

more common, the task of protecting their confidentiality

becomes complex.

Numerous legal requirements apply to medical records; many

of these embody the same principles of confidentiality that also

apply to verbal communications. There are, however, specific

provisions that pertain to written records, in general, and

heightened protections that apply to particular types of records

related to substance abuse or mental health treatment (45).

While basic rules of confidentiality apply to medical records,

numerous exceptions require disclosure to a variety of funding

entities such as Medicare and Medicaid, to other governmental

agencies such as law enforcement, or to peer review organiza-

tions (45). In addition, with the permission of a patient or legal-

ly authorized representative, medical records can be disclosed

to a wide variety of persons and entities, particularly insurers

(45). Nevertheless a wide range of civil liability and criminal

penalties may apply to the unauthorized disclosure of confi-

dential records (45).

The same basic framework applies to medical records docu-

menting health care provided to adolescents. However, when

those adolescents are minors and the care involves sensitive

issues such as pregnancy, Sexually transmitted diseases, sub-

stance abuse, or mental health concerns, disclosure of the

records may be subject to specific legal requirements that bal-

ance-more or less successfully-the interests of adolescents and

their parents. For example, some states have enacted specific

provisions that give minor patients the right to decide whether

or not to release medical records that pertain to care for which

they can give their own consent (46,47). In some cases these

laws even require that parents’ requests to review such records

be refused if the minor objects (46). This is not the case in

every state or for all sensitive services, however, and even

where such requirement applies, a parent might be able to seek

a court order to compel release of the records. Therefore, it is

essential to be aware of the requirements of state law.

As a practical matter, most hospitals and outpatient facilities

follow a standardized policy that requires authorization from a

parent or guardian for the release of records if the patient is

below the age of 18 years. In most cases, with parent or

guardian authorization, records are released without requiring

the permission of the minor adolescent patient or even if the

adolescent objects (45). This usually means that a parent or

guardian, possibly even including a non-custodial parent, is

allowed to review the medical records of a minor child. In some

cases such a policy would be consistent with state law; in oth-

ers there might be a legal basis for modifying the policy to

entrust greater authority to the minor patient to decide whether

records should be released.

Health care professionals who treat adolescents should be

aware that protecting the confidentiality of medical records for

their patients who are below the age of 18 years is far more dif-

ficult than protecting verbal communications. Practitioners

should review all requests for disclosure of records related to

their adolescent patients and should consider that sensitive or

damaging information might be revealed if records are trans-

ferred. The clinician who cares for adolescents should seek to

ensure that hospital or clinic policies prevent release of records

without the permission of the treating professional. When

disclosure of records is sought, treating professionals should

err on the side of seeking the adolescent patient’s permission

before releasing the information. In some cases, such as report-

ing of child abuse pursuant to legal requirements, the caregiv-

er may not have discretion to refuse disclosure. However, in

such cases ethical principles would require that the mandatory

release of information be explained to the patient. Whenever a

clinician feels that releasing records might result in harm to the

adolescent patient, consultation with legal counsel should be

sought.

Practical Issues

Working to support a confidential relationship with an adoles-

cent in a health care setting requires commitment. This section

will review some practical issues and the implementation of

confidentiality.

At an appropriate age for the patient, the health provider should

set forward a “contract,” either verbal, or in writing, so that the

patient and parent understand the concept of confidentiality.

Most providers discuss this at the beginning of an encounter

and reinforce it at later encounters. Some compose a letter to

patients and parents at a certain milestone age (12 or 14 years)

and describe the changes that adolescent status will confer to

the clinician/patient/parent relationship and how it will affect

office procedures.

The contract should clarify the basic meaning of confidential-

ity. For younger adolescents it is necessary to describe in

simple language that it means: “What we talk about will be pri-

vate; I will not discuss it with anyone else.” Some adolescents

may assume that if you are discussing confidentiality, you must

assume they have “secrets.” Therefore, it is useful to say, “Our

discussion will be private and confidential, even if you don’t

mind your parents knowing about anything that we talk about.”

The conditional nature of confidentiality should be discussed

with the adolescent patient. The risk of imminent physical

harm or suspected abuse are necessary exceptions to the assur-

ance of confidentiality. It is helpful to use examples that make

this understandable. For example, “Everything will be confi-

dential unless something happens, such as if you become

suicidal, or you have a severe problem for which you cannot

help yourself.”

It should be mentioned that clarifying the confidential nature

A-12

of the discussion is not a time consuming task. Most providers

learn by experience to do this quickly and efficiently. Although

this confidential contract is necessary to clarify routinely, ado-

lescents learn to trust the health provider by more than the ini-

tial discussion. Every aspect of the relationship, from the first

discussion through meeting with the parent after the teenager’s

examination, to the follow-up phone call, if needed, will show

the teen whether the provider can be trusted to follow the con-

fidential agreement.

The parent or parents might wish to give information to the cli-

nician without the teenager in the room. The provider might

learn important information from an adult about a behavior that

the teen is minimizing, hiding or in denial about. It is best to

conduct these meetings after discussing the ground rules with

the teen and parent. The provider should attempt to minimize

the numbers of these private encounters with parents and to

confine them as much as possible to the early stages of treat-

ment. For most encounters, the goal is that everything that con-

cerns the parents should be discussed in their presence. The

health professional attempts to improve communication rather

than set up separate relationships between physician and parent.

This process helps adolescent patients recognize that the care is

centered upon their needs and that they will not be excluded. If

a provider accepts a parent’s request to talk apart from their ado-

lescent, the discussion should be kept confidential.

Health providers have recognized that verbal information is

easier to keep confidential than information on the patient’s

chart. Some state laws mandate release of records to adults who

request them. Various approaches have been taken to protecting

written information. Some providers have created systems of

abbreviations for commonly recorded bits of sensitive informa-

tion; for example, “SU” to denote : sexually active; unprotected

intercourse. Others have kept separate written or computer

records with the most sensitive information recorded. It should

be remembered that “shadow” files are legally retrievable in the

same manner as the standard medical record, if discovered. For

practical purposes, most health professionals record the impor-

tant points of information on the chart in the standard fashion.

Every request for records should come to the provider for per-

mission. If there is information that might harm the adolescent

if released, the advocacy effort to block the release can be start-

ed by postponing signature for the release and seeking legal

support.

References are available online at: http://www.adoles-

centhealth.org/html/confidential.html

Prepared by:

Garry Sigman, M.D.

Tomas Silber, M.D.

Abigail English, J.D.

Janet Gans, Ph.D.

CONFIDENTIALITY LITERATURE REVIEW SUMMARIES

Council for Scientific Affairs, AMA. “Confidential Health Services for Adolescents,” JAMA Vol. 269 No.11,

March 1993.

This report reviews adolescents’ need for confidential health services and major barriers to confidential care

including the prerogative to provide informed consent for medical treatment and payment for health services.

Privacy is generally acknowledged to be essential to a patient’s trust in a health care provider and to a patient’s

willingness to supply information candidly. Recent exceptions to the traditional parental consent requirement

have been made to consider adolescents in the armed forces, those living away from home or those considered

emancipated minors. The legal need for parental consent triangulates the adolescent patient-physician relation-

ship by bringing a third party into health care decision making. Confidential health care may ultimately be

compromised by economic realities. Few adolescents can afford to pay for their own medical care, and few

physicians can provide subsidized care on a regular basis. The article recommends that 1) providers reaffirm

that confidential care for adolescents is critical to health improvement, 2) physicians involve parents in the

medical care of their teens, 3) physicians discuss their policies about confidentiality with parents and the ado-

lescent patient, as well as conditions under which confidentiality would be abrogated, 4) health care payers

develop a method of listing of services that preserves confidentiality for adolescents, and 5) state medical soci-

eties review laws on consent and confidential care for adolescents and eliminate laws that restrict the availabili-

ty of confidential care.

2. Ford, Carol A., MD, et al. “Foregone Health Care Among Adolescents,” JAMA Vol. 282 No. 23, December 1999.

No annual national population estimates exist of the number of adolescents who think they need but do not

receive health care or of their risk of health problems. Ford, et al. describe the proportion of young people who

report foregone health care each year and the influence of sociodemographic factors, insurance status, past

health care, and health risks/behaviors on the foregone care. Cross-sectional analyses of data from the 1995

National Longitudinal Study of Adolescent Health showed that on average, 18.7% of adolescents reported fore-

gone health care within the past year. Factors associated with decreased risk of foregone care included continu-

ous private or public insurance, or a physical examination within the past year. Factors associated with

increased risk of foregone care included older age, minority race/ethnicity, single-parent household, and disabil-

ity. In addition, adolescents who reported daily cigarette use, frequent alcohol use, and sexual intercourse were

more likely to report foregone care. The results of this study suggest that adolescents who forego care are at

increased risk of physical and mental health problems. If health care professionals are to address major causes

of adolescent morbidity and mortality, strategies are needed to decrease foregone care. Factors that influence

adolescents to forego care must be considered when designing systems to address adolescents’ unique health

needs.

3. Ford, Carol A., MD, et al. “Influence of Physician Confidentiality Assurances on Adolescents’ Willingness to

Disclose Information and Seek Future Health Care,”

JAMA Vol. 278 No.12, September 1997.

As part of a larger study on asymptomatic genital Chlamydia, Ford, et al. examines adolescents’ willingness to

be tested for sexually transmitted diseases (STDs) under varying confidentiality conditions. Participants

A-13

Adolescent Provider Toolkit

Adolescent Health Working Group, 2002

A-13

Adolescent Provider Toolkit

between the age of 15 to 24 completed an anonymous written survey measuring willingness to provide speci-

men for STD testing as part of routine health care under three different confidentiality conditions: if their par-

ents 1) would find out; 2) might find out; or 3) would not find out that they were tested. Of 1,114 subjects

enrolled in the larger study, 72% consented to participate in this questionnaire. Nearly all (92%) reported they

would agree to STD testing if their parents would not find out. Significantly fewer would agree to testing linked

to potential (38%) or definite (35%) parental notification. More male than female subjects were willing to

agree to testing linked to potential or definite parental notification (49.5% vs. 33%). It is significant that the

vast majority of sexually active adolescents report they would agree only to confidential STD testing. Privacy

concerns may place infected female adolescents at risk of complications. Since most adolescents receive routine

health care in private practice or HMO settings, confidential testing should be available at these sites. If physi-

cians’ abilities to provide confidential testing are limited because of threats to privacy associated with billing

and reimbursement, changes to the systems will be necessary.

4. Hofmann, Adele D., MD. “A Rational Policy Toward Consent and Confidentiality in Adolescent Health Care,”

Journal of Adolescent Health Care 1:9-17, 1980.

Hofmann’s review examines current conflicts surrounding consent and confidentiality in adolescent health care.

She contends that rules governing consent and confidentiality must respond to the unique developmental status

of youth as individuals who are increasingly capable of exercising rational choice and giving informed consent,

yet still need flexibly proffered guidance and support by parents and/or other adults. Specific policy recommen-

dations include: (a) the provision of options for adolescents to obtain confidential health services as necessary

for health protection and/or as suitable for their level of maturity; (b) the establishment of counseling standards

that require confidential services to adolescents to include developmentally appropriate guidance and support

rendered by professionals trained in adolescent health; (c) the encouragement of adolescents receiving confi-

dential care to consider whether or not they should involve their parents, recognizing that most young people

are advantaged thereby; and (d) when confidentiality is not an issue, the active participation of adolescents in

their health care decisions are affirmed by obtaining their informed consent.

5. Reddy, D., et al. “Effect of Mandatory Parental Notification on Adolescent Girls’ Use of Sexual Health Care

Services,”

JAMA Vol. 288, No. 6, August 2002.

A study was performed to determine the effect of mandatory parental notification for prescribed contraceptives

on use of sexual health care services by adolescent girls. 950 girls younger than 18 seeking services at all 33

Planned Parenthood family planning clinics in Wisconsin were surveyed. 59% indicated that they would stop

using all sexual health care services, delay testing or treatment for HIV or other STDs, or discontinue use of

specific (but not all) sexual health care services if their parents were informed that they were seeking prescribed

contraceptives. Results of the study showed that mandatory parental notification of prescribed contraceptives

would impede girls’ use of sexual health care services, potentially increasing teen pregnancies and the spread of

STDs.

Adolescent Health Working Group, 2002

FEDERAL MEDICAL PRIVACY REGULATIONS

(“HIPAA RULES”): A BRIEF OVERVIEW

Prepared by the Center for Adolescent Health & the Law

What are the federal medical privacy regulations?

The “Standards for Privacy of Individually Identifiable Health Information” are federal medical privacy regulations

(sometimes referred to as the “HIPAA rules”) that broadly regulate access to and disclosure of confidential medical

information. These regulations were promulgated by the Department of Health and Human Services (HHS) pursuant

to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

When were the regulations issued?

Proposed regulations were initially published in November 1999. Following the submission of thousands of com-

ments, a final rule was published on December 28, 2000. The effective date of this final rule was postponed until

April 14, 2001. Proposed modifications were published in March 2002. Following a public comment period, final

modifications were issued on August 14, 2002.

What is the scope of the regulations?

The regulations address a broad range of issues related to the privacy of individuals’ health information. They create

new rights for individuals to have access to their health information and medical records and also specify when an

individual’s consent is required for disclosure of their confidential health information. The regulations also contain

provisions that are specific to the health information of minor children.

Who must comply with the regulations?

The regulations apply to “covered entities,” which include health plans, health care providers, and health care clear-

inghouses. According to the way each of these is defined in the regulations, the vast majority of health care profes-

sionals who provide care to adolescents will be required to comply with the regulations.

When must the new rules be implemented?

Large health plans, health care providers, and health care clearinghouses must comply with the rules by April 14,

2003. Small health plans must comply with the rules by April 14, 2004.

What do the new regulations mean for adolescents?

The new regulations contain numerous provisions that will affect the confidentiality of information regarding health

care provided to adolescents. Most of the general provisions of the regulations are relevant. Adolescents who are age

18 or older are adults and have the same rights under the regulations as other adults. In addition, there are provisions

of the regulations that address the specific issues related to confidentiality of information for minors, including ado-

lescents who are under the age of 18 and not emancipated. This summary provides only a brief introduction to the

provisions pertinent to minors. Detailed information regarding those provisions and information regarding other pro-

visions of the regulations is available from other sources.

What are the specific requirements for adolescents who are minors?

Parents (including guardians and persons acting in loco parentis) generally are considered the personal representa-

tives of and have control over and access to protected health information for their unemancipated minor children. In

specific circumstances, parents are not necessarily the personal representatives of their minor children.

When is a parent not the personal representative of his or her minor children?

A parent is not necessarily the personal representative of his or her minor child in one of three specific circum-

stances; (1) when the minor is legally able to consent for the care for himself or herself; or (2) the minor may legally

A-14

receive the care without the consent of a parent, and the minor or someone else has consented to the care; or (3) a

parent has assented to an agreement of confidentiality between the health care provider and the minor. In these cir-

cumstances, the minor may exercise many of the rights under the regulations. In these circumstances, the minor also

may choose to have the parent act as the personal representative or not.

What happens when a parent is not the personal representative?

When a parent is not the personal representative of the minor, the minor may exercise most of the same rights as an

adult under the regulations. With respect to the question of whether a parent who is not the personal representative of

the minor may have access to the minor’s confidential information (“protected health information”), the regulations

defer to state or other law. If state or other law explicitly requires or permits information to be disclosed to a parent,

the regulations allow a health care provider to comply with that law and to disclose the information. If state or other

law prohibits disclosure of information to a parent, the regulations do not allow a health care provider to disclose it.

If state or other law is silent on the question, a health care provider has discretion to determine whether or not to

grant access to a parent to the protected health information.

What do the regulations mean for health care providers in California?

California has numerous laws that allow minors to give their own consent for health care. In addition, California has

laws that specify the circumstances under which parents may or may not have access to information regarding the

care for which minors may give their own consent. The federal privacy regulations would defer to those California

laws. For adults, including adolescents age 18 or older, the federal regulations defer to state laws that provide

stronger privacy protections than the federal rules do. Many other provisions of the regulations would remain appli-

cable to health care providers in California.

What happens if a parent is suspected of domestic violence, abuse, or neglect?

When a parent is suspected of domestic violence, abuse, or neglect of a child, including an adolescent, a health care

provider may limit the parent’s access to and control over protected health information about the child by not treating

the parent as the personal representative of the child.

Where is additional information available that explains the regulations?

Implementation of the regulations is being overseen by the Office for Civil Rights (OCR) within HHS. OCR has

established a web site with comprehensive information about the implementation of the regulations:

http://www.hhs.gov/ocr/hipaa/. The Health Privacy Project at Georgetown University also maintains a web site with

extensive information and links regarding the regulations: http://www.healthprivacy.org/newsletter-url2305/newslet-

ter-url_show.htm?doc_id=33936.

What are the official citations for the regulations?

Standards for Privacy of Individually Identifiable Health Information: Final Rule, 65 Federal Register 82461 (Dec.

28, 2000); and Standards for Privacy of Individually Identifiable Health Information: Final Rule, 67 Federal Register

53182 (Aug. 14, 2002). The original rule and the modifications will be merged and codified at 45 Code of Federal

Regulations Parts 160 and 164. In the meantime, the August 2002 modifications must be read together with the

December 2000 version of the rules to understand the full range of what is required.

How does a health care provider know what is required?

This overview does not provide legal advice. Health care providers should consult with legal counsel to be sure they

are aware of the specific requirements of the regulations that apply to them and how to comply with those require-

ments.

Center for Adolescent Health & the Law, 211 North Columbia Street, Chapel Hill,

NC 27514. (919) 968-8850. [email protected]g

CONFIDENTIALITY AND MINOR CONSENT-RELATED

RESOURCES AVAILABLE ONLINE

A-15

Adolescent Provider Toolkit

• National Center for Youth Law

http://www.youthlaw.org

See Articles and Analysis about Adolescent and Child Health

CA Minor Consent Laws – National Center for Youth Law, 8/01

http://www

.youthlaw.org/CaMinorConsentLaws.pdf

CA Minor Consent Laws: Who can consent for what services and providers’ obligations

http://www.youthlaw.org/MinorConsentandObligations.pdf

An Analysis of Assembly Bill 327: New CA Child Abuse Reporting Requirements for

Family Planning Providers, 5/98

http://www.youthlaw.org/AB327.pdf

• Advocates for Youth

http://www.advocatesforyouth.org

See Recent Publications

Adolescent Access to Confidential Health Services, 1997

http://www

.advocatesforyouth.org/publications/iag/confhlth.htm

• Society for Adolescent Medicine

http://www.adolescenthealth.org

See Publications

Confidential Health Care for Adolescents

http://www

.adolescenthealth.org/html/confidential.html

• California Adolescent Health Collaborative

http://www.californiateenhealth.org/

See Strategic Plan

Investing in Adolescent Health: A Social Imperative for California’s Future

http://www

.californiateenhealth.org/strategic.html

• California Healthcare Association

http://www.calhealth.org/

See Publications and Manuals

Minors and Health Care Law: A Handbook in Consent for Treatment of Infants,

Children, and Adolescents (order form)

http://www

.calhealth.org/public/pubs/gms/minors.html

This page will be on the back of the “Confidentiality

and Minor Consent-Related Resources Available

Online” page and will be printed blank