By: Cristina N. Hyde, J.D.

In New Jersey, any individual under the age of 18 is a minor.  Despite the existing crises climate created by the COVID-19 pandemic, physicians, providers and covered entities have a continuing responsibility to be mindful of certain privacy issues when caring for patients who have not yet reached the legal age of majority.

Below are some highlights regarding minor patient privacy, as outlined by the HIPAA Omnibus Rule (the “Rule”).  You can find the Rule, and other helpful information here.

3 Situations Where the Parent is not also a Minor’s Personal Representative:

• When the minor is the one who consents to care and the applicable law does not require parental consent.
• When care of the minor patient was pursuant to a court order or at the direction of an individual appointed by the court.
• When, and to the extent that, the parent agrees that the minor and the health care provider may have a confidential relationship.

4 Circumstances where an Individual Under the Age of 18 is NOT a Minor:

•  The individual is married.
• The individual is pregnant.
• The individual is currently also a parent.
• The individual has been emancipated by a formal court order and is between the ages of 16 and 18.

8 Types of Care Where Consent of a Personal Representative is NOT Required:

•  Psychology and Psychiatry (ages vary for outpatient or inpatient care).
• Treatment for sexually transmitted diseases.
• Treatment for alcohol or drug Abuse.
• Treatment for collateral effects of a family member’s substance abuse.
• Provision of abortion services.
• Treatment for criminal sexual assault/abuse or any disease resulting therefrom.
• Provision of birth control (in some cases).
• Treatment for an emergency situation where obtaining consent is not feasible and waiting for consent will adversely affect the minor’s health.

In addition to the exceptions already mentioned, the Rule recognizes a diverse health care environment; seeking flexibility in addressing the uses and disclosures of important information.  Other notable exceptions include the ability of a parent or guardian to consent to a child’s care remaining confidential between the child and the child’s provider.  The Rule also allows for provider discretion in order to serve the minor’s best interests; such as when disclosure could otherwise endanger a child.

If you find yourself in a situation where you are unsure as to your minor patient’s privacy rights or other obligations under the HIPAA Omnibus Rule, contact us.