Minor Children and Parental Rights to PHI

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This article covers the circumstances under which a child’s parent may view or receive copies of the child’s protected health information.

May Both Parents, Even if They Are Divorced, View or Receive a Child’s PHI?
Generally, both parents spouses of an unemancipated minor may access a child’s PHI. The mere fact that parents are divorced does not deprive a non-custodial parent of the right to access records.

What Must a Parent Have to Access or Receive a Child’s PHI?
If a person has authority to act on behalf of an unemancipated minor decisions related to health care (e.g., has legal authority to make healthcare decisions on behalf of the child; legal custody is different from physical custody, which is the right to reside with the child),  a provider  must treat such person as a personal representative under HIPAA and provide requested records.  When might a non-custodial parent not have legal custody? One instance is when a court order, divorce decree, or custody decree,or state law, specifically states that the parent in question cannot make healthcare decisions on behalf of the child.

What Must a Provider Do Before Granting a Parent Access to PHI?

If the parent is not already known to the provider and the provider has no proof of parentage allowing the parent to see healthcare records other than the parent’s say-so, the provider must verify the identity or authority of the parent. Identity can be verified through a driver license. A healthcare power of attorney is a document that can verify authority.

When is a Parent Not Entitled to Access Minors’ Records?

There is an exception to the rule that both parents can generally access PHI. When a physician or other covered entity “reasonably believes” that the unemancipated minor has been or may be subjected to domestic violence, abuse, or neglect by a personal representative, OR, or that treating a person as an individual’s personal representative could endanger the individual, the covered entity may choose not to treat that person as the individual’s personal representative, if in the exercise of professional judgment, doing so would not be in the best interests of the individual.