Custodial Care: Minors and Custody Disputes

Practices that provide healthcare to minors have probably already encountered situations where a minor’s parents or guardians disagree on the details of the minor’s care. But not all practices are prepared to address situations where parents or guardians disagree on who can access the minor’s medical records.

The Case

Mr. Smith comes into a medical office to request copies of his four-year-old son’s medical records. At the practice’s request, he signs their HIPAA release form and agrees to return in a few days to collect the reproduced file. In the meantime, the practice receives a call from Mrs. Smith instructing them not to release any records to the father because she and Mr. Smith are in a contentious divorce, and the court has awarded her full custody of their son. Moments after the conversation with Mrs. Smith ends, Mr. Smith appears in the office and demands that they produce the son’s medical file.

The Authority

HIPAA’s Privacy Rule established new rights for individuals to access their own protected health information (PHI). HIPAA applies to health plans, health care providers, and health care clearinghouses, collectively referred to as “covered entities” (45 C.F.R. § 160.103). In most cases, the Privacy Rule allows a parent to obtain their minor child’s PHI, but there are exceptions. For example, a parent may not obtain their child’s PHI if that parent voluntarily agreed that the PHI would be confidential. More broadly, HIPAA also prohibits disclosure of PHI where that disclosure would be inconsistent with state or other applicable laws.

State laws also address parental access to children’s medical records, and we recommend that practices consult an attorney to learn more about how their state law deals with this issue. In the state where this practice is located, each parent has equal access to records related to their minor child’s health, education, and welfare.

Relevant to this case, a person’s parental rights may also be terminated by court order.  Significantly, however, an award of custody alone does not terminate parental rights. To terminate a person’s parental rights in the state where this practice is located, a court must make one or more of the findings enumerated by “clear, cogent and convincing evidence.” For example, a court may terminate parental rights if it finds by “clear, cogent and convincing evidence” that a parent has abused or neglected the child, has been convicted of a sexually related offense, or has had his or parental rights terminated with respect to another child and lacks the ability to establish a safe home. Until such an order is entered, however, each parent is entitled to exercise his or her own parental rights to access a minor child’s PHI.

The Result

Despite Mrs. Smith’s insistence that her custody award cuts off Mr. Smith’s access to their child’s medical records, unless she can produce a court order that plainly terminates Mr. Smith’s parental rights, Mrs. Smith has not provided the practice with a valid basis to deny Mr. Smith’s request for his son’s medical file.

Tips on Dealing with Disclosure Requests

• If anyone objects to a practice disclosing PHI, the best course of action is to withhold all PHI until the practice or its attorney has fully investigated what role the objecting party plays and why they oppose disclosure.
• Be aware of the nature of the PHI in files, because certain kinds of PHI requires additional precautions or may be altogether barred from disclosure.
• Do not rely on anyone else’s opinion of what a particular legal document says. Always ask to have a copy of the order(s) for the file, and consult an attorney for further instructions.
• If a practice becomes aware that the parents are divorcing, it should request copies of any orders that might affect their interactions with the patient and save copies of those orders in the patient’s file.
• Reference the Records Release section of Curi’s Risk Management Handbooks for state-specific guidance on proper PHI disclosure procedures.

Disclaimer: This post is written in general terms and is not a substitute for legal advice or intended to create an attorney-client relationship.