Looks like we're both wrong. Apparently a parent automatically qualifies as the patient's representative. I find this interesting because I have medical clients who won't even talk to spouses without a health care power of attorney. Here's the comments that I linked to from the Health and Human Services Site:
| | | | Can parents get information about emergency treatment given to their child without parental consent? | Images available only to Customers.
| | | Question | | | If a child receives emergency medical care without a parent's consent, can the parent get all information about the child's treatment and condition? | Images available only to Customers.
| | | Answer | | | Generally, yes. Even though the parent did not consent to the treatment in this situation, the parent would be the child's personal representative under the HIPAA Privacy Rule. This would not be so when the parent does not have authority to act for the child (e.g., parental rights have been terminated), when expressly prohibited by State or other applicable law, or when the covered entity, in the exercise of professional judgment, believes that providing such information would not be in the best interest of the individual because of a reasonable belief that the individual may be subject to abuse or neglect by the personal representative, or that doing so would otherwise endanger the individual.
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| | Does the HIPAA Privacy Rule provide rights for children to be treated without parental consent? | Images available only to Customers.
| | | Question | | | Does the HIPAA Privacy Rule provide rights for children to be treated without parental consent? | Images available only to Customers.
| | | Answer | | | No. The Privacy Rule does not address consent to treatment, nor does it preempt or change State or other laws that address consent to treatment. The Rule addresses access to, and disclosure of, health information, not the underlying treatment.
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| Can an adult or emancipated minor's personal representative access that person's medical record? |
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| | Can the personal representative of an adult or emancipated minor obtain access to the individual's medical record? |
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| | Answer |
| | The HIPAA Privacy Rule treats an adult or emancipated minor's personal representative as the individual for purposes of the Rule regarding the health care matters that relate to the representation, including the right of access under 45 CFR 164.524. The scope of access will depend on the authority granted to the personal representative by other law. If the personal representative is authorized to make health care decisions, generally, then the personal representative may have access to the individual's protected health information regarding health care in general. On the other hand, if the authority is limited, the personal representative may have access only to protected health information that may be relevant to making decisions within the personal representative's authority. For example, if a personal representative's authority is limited to authorizing artificial life support, then the personal representative's access to protected health information is limited to that information which may be relevant to decisions about artificial life support.
There is an exception to the general rule that a covered entity must treat an adult or emancipated minor's personal representative as the individual. Specifically, the Privacy Rule does not require a covered entity to treat a personal representative as the individual if, in the exercise of professional judgment, it believes doing so would not be in the best interest of the individual because of a reasonable belief that the individual has been or may be subject to domestic violence, abuse or neglect by the personal representative, or that doing so would otherwise endanger the individual. This exception applies to adults and both emancipated and unemancipated minors who may be subject to abuse or neglect by their personal representatives.
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| | | | Does the HIPAA Privacy Rule allow parents the right to see their children's medical records? | Images available only to Customers.
| | | Question | | | Does the HIPAA Privacy Rule allow parents the right to see their children's medical records? | Images available only to Customers.
| | | Answer | | | Yes, the Privacy Rule generally allows a parent to have access to the medical records about his or her child, as his or her minor child's personal representative when such access is not inconsistent with State or other law.
There are three situations when the parent would not be the minor's personal representative under the Privacy Rule. These exceptions are:
- When the minor is the one who consents to care and the consent of the parent is not required under State or other applicable law;
- When the minor obtains care at the direction of a court or a person appointed by the court; and
- When, and to the extent that, the parent agrees that the minor and the health care provider may have a confidential relationship.
However, even in these exceptional situations, the parent may have access to the medical records of the minor related to this treatment when State or other applicable law requires or permits such parental access. Parental access would be denied when State or other law prohibits such access. If State or other applicable law is silent on a parent's right of access in these cases, the licensed health care provider may exercise his or her professional judgment to the extent allowed by law to grant or deny parental access to the minor's medical information.
Finally, as is the case with respect to all personal representatives under the Privacy Rule, a provider may choose not to treat a parent as a personal representative when the provider reasonably believes, in his or her professional judgment, that the child has been or may be subjected to domestic violence, abuse or neglect, or that treating the parent as the child's personal representative could endanger the child.
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Edited by LegalEagle, LLC on January 31 2007 at 3:02 PM
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