Transcript Adolescent Health and Confidentiality

Adolescent Health and
Confidentiality
NCPHA Fall Educational Conference
Jill Moore, JD, MPH
UNC School of Government
September 2016
Adolescent Health and Confidentiality
• The Public Health Nursing and Professional Development
Unit, North Carolina Division of Public Health, is approved as
a provider of continuing nursing education by the North
Carolina Nurses Association, an accredited approver by the
American Nurses Credentialing Center’s Commission on
Accreditation.
• This presentation is being jointly provided with the North
Carolina Association of Public Health Nursing, Women’s and
Children’s Health and Social Work Sections.
• The planners and presenters have no actual, potential or
perceived conflicts of interest to disclose.
Adolescent Health and Confidentiality
• In order to obtain CE for this session
participants must:
• Remain for the entire presentation
• Complete and submit the participant
evaluation from the Public Health Nursing
and Professional Development Unit which
will be provided at the end of the
presentation.
• A total of one contact hour will be awarded
for this presentation.
Adolescent Health and Confidentiality
• Objectives
 Identify changes in the NC statutes related to consent for the
treatment of minors in DSS custody
 Discuss challenges in confidentiality created by the use of
new technologies, such as texting and patient portals
 Review components of a draft policy on text messaging
 Describe 2015 changes to NC’s Healthy Youth Act
Healthy Youth Act Changes
S.L. 2015-279 (S 279)
• “An Act to Modify Educational Qualifications
for the Practice of Counseling and to Require
Local Boards of Education to Address Sex
Trafficking Prevention & Awareness”
• Also amended G.S. 115C-81(e1)(4), aka Health
Youth Act
Healthy Youth Act Changes
History:
• Abstinence-based sex education, comprehensive
sex education only if locally approved
• 2009 – Health Youth Act:
– Added comprehensive sex education, to include
information about condoms and contraceptives as
well as abstinence
– Required instructional materials to be based on
scientific research that is peer-reviewed and accepted
by professionals and credentialed experts in field of
sexual health education
Healthy Youth Act Changes
2015 Changes:
• “Information conveyed during the instruction shall be objective and
based upon scientific research that is peer reviewed and accepted
by professionals and credentialed experts in the field fields of any
of the following: sexual health education. education, adolescent
psychology, behavioral counseling, medicine, human anatomy,
biology, ethics, or health education.“
• Also required actions related to sex trafficking prevention and
awareness.
– LEAs must collaborate with “diverse group of outside consultants”
including law enforcement to address threat of sex trafficking and
develop a referral protocol for students
– Law enforcement agencies and nongovernmental organizations with
expertise in sex trafficking prevention and awareness may contribute
to instructional materials and information.
Cyberbullying (G.S. 14-458.1)
State v. Bishop, NC Supreme Court (June 10)
• Case: High school student posted comments on Facebook about
another student, including comments about the other student’s
sexuality and genitals. Student who posted comments charged with
cyberbullying and convicted. Appealed conviction.
• Court decision: The portion of cyberbullying statute that was basis
of the conviction violates First Amendment: restricts speech, the
restriction is not content-neutral, and the statute is not narrowly
tailored to State’s interest in protecting children from online
bullying.
• What does this mean?
– The portion of the statute that was struck down can’t be enforced
– Other portions of statute? Not directly affected by court’s decision,
but decision may call into question whether they too might be
invalidated and this will likely influence decisions about prosecutions
CONSENT TO HEALTH CARE FOR
MINORS (UNDER AGE 18)
Who may consent for minor?
• General rule: Parent (or
parent substitute)
consents
• Exceptions:
– Emancipated minors
– Parent authorizes
another adult to consent
– Emergencies and other
urgent circumstances
– Minor’s consent law
Minor in DSS custody (G.S. 7B-505.1)
DSS director may
consent
• Routine medical and dental care or treatment
• Emergency medical, surgical, psychiatric, psychological, or
mental health care or treatment
• Testing & evaluation in exigent circumstances
DSS must obtain
parent’s
authorization for
DSS to consent
(unless court
authorizes director
to consent)
• Prescriptions for psychotropic medications
• Participation in clinical trials
• Immunizations when it is known the parent has a bona fide
religious objection
• Child Medical Evaluation
• Comprehensive clinical assessments or other mental health
evaluations
• Surgical, medical, or dental procedures or tests that require
informed consent
• Psychiatric, psychological, or mental health care or
treatment that requires informed consent
Minor may consent
(G.S. 90-21.5)
• A minor in DSS custody may consent to treatments covered
under NC minor’s consent law, the same as a minor who is
not in DSS custody
Minors’ consent laws
What is required to be able to give consent
to treatment?
Legal capacity
Decisional capacity
• Legal recognition of a
class of individuals’
authority to give
informed consent to
treatment
• Example: Everyone
over age 18
• Not individualized; if
you’re in the class you
have legal capacity to
consent
• Particular individual is
capable of making and
communicating his or
her own health care
decisions
• Individualized
determination: is this
person capable of
making and
communicating this
decision?
What is required for a minor to give
consent for own treatment?
Legal capacity
Decisional capacity
• Legal recognition
that the minor
may consent
• Emancipated
minors
• Minor’s consent
laws
• Individualized
determination: is
this minor
capable of
making and
communicating
this decision?
NC minors’ consent law (GS 90-21.5)
• Gives any minor legal capacity to consent to
services for the prevention, diagnosis, or
treatment of:
– Sexually transmitted infections or other reportable
communicable diseases
– Pregnancy (but minors may not receive abortions or
medical sterilization on their own consent)
– Emotional disturbance (but minors may not consent
to admission to a 24-hour facility, except in
emergencies)
– Abuse of controlled substances or alcohol (with the
same restriction on admission to 24-hour facilities)
What’s the
minimum
age?
• What do you think
about the minimum age
for a minor to give
consent under NC’s
minor’s consent law?
§ 90-21.5. Minor's consent sufficient for certain medical health services.
(a) Any minor may give effective consent to a physician licensed to practice medicine
in North Carolina for medical health services for the prevention, diagnosis and treatment
of (i) venereal disease and other diseases reportable under G.S. 130A-135, (ii) pregnancy,
(iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance. …
Other FAQs about G.S. 90-21.5
What if parent wants
minor to have a
treatment covered by
minor’s consent law,
but minor doesn’t
want it?
Does law
authorize a
minor to consent
to HPV vaccine?
Did the
legislature
change it?
CONFIDENTIALITY AND DISCLOSURE
OF RECORDS
Why have confidentiality for
adolescents?
• Avoid negative health outcomes
– Protect individual adolescents’ health
– Protect the public health
• Encourage adolescents to seek needed care
• Research supports rationale – findings show
that concerns about privacy influence:
– Whether adolescents seek care
– When and where they seek care
– How open they are with health care provider
Confidentiality Laws
Federal
• HIPAA
• FERPA
• Others specific to particular
settings or clients:
– Title X
– Substance abuse (applies to
federally assisted substance
abuse programs, not to all
substance abuse info in
medical records)
State
• Confidentiality for minor’s
consent services
(G.S. 90-21.4)
• Other laws specific to
particular conditions or
treatments:
– Communicable disease
– Mental health
HIPAA terms
Protected health
information (PHI)
• Information that
identifies an individual
and relates to
– Health status or
condition, or
– Provision of health care,
or
– Payment for the
provision of health care
Individual
• A person who is the
subject of PHI
Personal representative
• A person with legal
authority to act on
behalf of an individual
in making decisions
related to health care
Who controls disclosure of
information?
• General rule: Individual
• But if individual can’t make own health care
decisions, then personal representative
• How does this apply to minors?
HIPAA & Minors
Minor is treated as “individual” if:
Minor consents to health care
service and no other consent is
required by law
Minor may lawfully obtain care
without parental consent and
the minor, a court, or another
person gives the consent
Minor’s parent agrees to
confidentiality between minor
and HCP for a health care
service
Minor’s consent law
(G.S. 90-21.5)
Ex: NC law allows certain adults
other than parents to consent
to minor’s abortion, or court
may waive parental consent
Ex: Pediatrician may ask a
parent for permission to
examine and/or consult with an
adolescent privately
What does it mean for the minor to be
treated as the “individual”?
• Minor is the person who exercises HIPAA
rights regarding information about the health
care service:
– Signing authorizations for disclosure (when
authorization is required)
– Right of access to the information
– Right to request additional confidentiality
protections for the information
What about disclosure to parents?
HIPAA defers to state or “other applicable” law
State/other law
requires disclosure
•HCP must disclose
State/other law
prohibits disclosure
•HCP may not disclose
State/other law
permits disclosure
•HCP has discretion
State/other law is
silent on issue
•HCP has discretion
What do NC & other laws say about
disclosing minor’s consent info to parents?
NC law (G.S. 90-21.4(b))
• General rule: No disclosure
to parent without minor’s
permission
• Exception: HCP may disclose
to parent if:
– Essential to life or health of
the minor, or
– Parent contacts HCP and
inquires about the treatment
Other laws
• May prohibit or inhibit
disclosure to parents about
minor’s consent services
for:
– Family planning (Title X,
Medicaid)
– Communicable diseases (G.S.
130A-43)
– Mental health (G.S. Ch. 122C)
– Substance abuse (42 CFR Part
2)
Bottom lines?
General Rule
• Need the minor’s
permission to disclose
information about
treatment received under
minor’s consent law to
anyone, including parents
Exceptions
• May disclose to parent if
essential to minor’s life or
health
• May make other disclosures
without minor’s permission
when disclosure is required
by other laws (e.g., to
report child abuse or
neglect)
EMERGING ISSUES IN
CONFIDENTIALITY
Insurance & Confidentiality
• Slide credits:
Abigail English, JD, Center for Adolescent Health
& the Law
• See also:
Position Paper: Confidentiality Protections for
Adolescents and Young Adults in the Health Care
Billing and Insurance Claims Process (Society for
Adolescent Health & Medicine & the American
Academy of Pediatrics)
Evolving Challenge
• Increased number of individuals with
Medicaid and commercial insurance
• Increased number of young adults > age 18
covered on parents’ plans
• Significant potential for confidentiality
breaches in billing & health insurance claims
process
• Evolving protections at state level build on
HIPAA Privacy Rule, face challenges
Center for Adolescent Health & the Law
HIPAA Privacy Rule: Special Protections
• Request for restrictions on disclosure of
protected health information
• Request for communication by alternate
means or at alternate locations
Center for Adolescent Health & the Law
Disclosure Requirements
• Federal law
– HIPAA Privacy Rule: disclosures allowed for treatment, payment,
& health care operations
– ERISA & ACA: notice of denials of claims & adverse benefit
determinations
– Medicaid does not require EOBs
• State law
– Types of communications: EOBs, denials, & others
– Recipients of communications: policyholder, beneficiary & other
– Content of communications; provider, type of service, & other
• Insurers’ policies & practices
Center for Adolescent Health & the Law
Position statements in brief
1. HCPs should be able to
deliver confidential
health services to
adolescents/young
adults covered as
dependents on family
insurance
2. Policies and
procedures should be
established to ensure
that health care billing
and insurance claim
processes such as EOB
notifications do not
impede confidential
services
Patient Portals
Who has access?
• Parent/parent/substitute?
• Minor?
• Both?
What do laws say about who
should have access?
• Sometimes parent (if
treated as minor’s personal
representative under
HIPAA)
• Sometimes minor (if treated
as individual under HIPAA)
• Could be both (it depends)
HIPAA Security Rule
• Applies if texts contain
protected health
information
• All ePHI must be protected
by technical, physical, and
administrative safeguards
• Cannot address this issue
with an authorization form
– need a policy that
satisfies security rule’s
requirements
Template policy
• Conduct a security risk
analysis before
adopting policy
• Customize policy to
your agency
• Train workforce before
implementing policy
Contact Information
Jill Moore
UNC School of Government
919-966-4442
[email protected]