Your first concern is your patient, but it’s easy to find yourself reduced to a role as a pawn in a power struggle between parents. How can you maintain a neutral standing, do what’s best for your patient, and navigate the potentially treacherous waters of HIPAA laws and divorce?
HIPAA Laws and Divorced Parents – Your Responsibilities Under HIPAA
HIPAA recognizes that parents of minor children have a right to access a child’s medical records, because they have the legal responsibility to make decisions for the child.
Absent any legal statement or ruling otherwise, both parents retain the right to view their child’s medical records following a divorce. In general, designations of custody alone should have no bearing on either parent’s right to view their minor child’s medical records unless the final separation order or divorce decree declares otherwise. The laws of each state may differ, so what’s the safest strategy for your practice?
HIPAA Laws and Divorced Parents – Finding the Safest Course
No one wants to find themselves caught in the crossfire between two parents in the middle of a messy divorce. The best way to avoid it is to plan on how to respond before it happens.
The safest course of action is to develop a clear written policy that standardizes how your practice will handle every divorce situation.
This “catch-all” policy might include:
- Have both parents sign HIPAA forms to protect the child’s privacy rights.
- Ask for a copy of the temporary orders if the divorce is pending, or a copy of the court-approved separation agreement if the divorce is final. Check the legal documents to see if it states that the parent has a legal right to the child’s case notes.
- Retain all related HIPAA-compliant releases and requests in the child’s case notes in case there is further litigation.
HIPAA Laws and Divorced Parents – Older Minor Children
Remember that each state has specific rules about at what point a minor child can make certain healthcare decisions for themselves. In those cases, the decision about disclosing this information to a parent, divorced or not, is often left to the provider, if state law is silent on the matter.
Where state law permits a minor child who is legally emancipated, mature, living apart from their parents, pregnant, parents, high school graduates or older than a certain age to give informed consent to medical decisions, the HIPAA privacy rule defers to them.