legal rights & risks of adolescents in the age of aids

Legal Rights & Risks of Adolescents

in the Age of AIDS

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Have questions?

Call the Legal Action Center Ask for “attorney on call” 212-243-1313 (800) 223-4044 1 – 5 p.m.

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This training is . . . For providers of HIV and other health care and

services for young people who are living with, at risk or affected by HIV and AIDS.

About the legal rights and limits on the rights

of adolescents in the age of AIDS, in regard to: Getting preventive and & other health care,

and Handling HIV & other health risks they face.

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Three training objectives

One: Be able to describe when minors can make their own health care decision regarding:

HIV prevention, testing and treatment STDs & other communicable diseases Alcohol and drug problems Mental health services Reproductive health care

PART 1: WHO CAN CONSENT TO HEALTH CARE FOR MINORS?

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Three training objectives Two: Be able to summarize who may decide about

disclosing confidential health information about minors –

When their parents are in the picture. When foster care, school, public health, child abuse

and neglect, and juvenile or criminal justice systems are involved in their lives.

PART 2: CONFIDENTIALITY – MINORS AND HEALTH CARE

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Three training objectives

Three: Be able to – Describe the legal consequences of

transmitting HIV to others. Answer adolescent clients’ questions

about their legal rights in these areas.

Incorporated into Parts 1 & 2

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Part 1: Who Has the Right to Consent to Health Care for a Minor?

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First, need to know: Who generally has the right to consent to health care?

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A. Who generally has the right to consent to health care?

General principles of NY health law:

NY law generally respects individuals’ right to autonomy in making health care decisions.

The right to consent also means the right to refuse health care generally, or a particular test, treatment or health service.

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A. Who generally has the right to consent to health care? (cont.)

General principles of NY health law (cont.)

This means individuals are generally free to do whatever they choose with their own body, IF The individual is an “adult” in the eyes of

the law (18 years or older), and He or she has “capacity to consent.” See below for definitions.

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A. Who generally has the right

to consent to health care? (cont.)

Capacity to consent Means able to:

Understand and appreciate the nature and consequences of the proposed treatment or diagnosis, including benefits and risks of the proposed treatment possible alternatives to the proposed

test/treatment (including not doing it)AND

Make an informed decision about whether to consent – or not – to the proposed test, procedure, or treatment.

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What about minors?

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B. Who has the right to consent to health care for a minor?

Who is a “minor”? A person under age 18

Who consents to health care for a minor?

See next slide…

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B. Who has the right to consent to health care for a minor? (cont.)

The “person authorized by law to consent to health care” for an individual:

person with authority under NYS law to make health care decisions for that individual.

AND person whose consent must ordinarily be

obtained before a health care provider may give that person medical/health services.

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B. Who has the right to consent to health care for a minor? (cont.)

General rule under NY law:

PARENT MUST CONSENT. A minor’s PARENTS are ordinarily the

“persons authorized by law to consent to health care” for their child until age 18.

Therefore, PARENTAL CONSENT is usually needed to provide medical or other health services to a child under 18.

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B. Who has the right to consent to health care for a minor? (cont.)

Who is the “parent” whose consent is needed?

Biological parent(s) in intact families, where parents have legal authority to make health care decisions for their child,

AND/OR . . .

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B. Who has the right to consent to health care for a minor? (cont.)

. . . AND/OR

Other persons in addition to or instead of biological parent(s), who stand in parents’ shoes for purpose of

making health care decisions for the child, and

are “authorized by law to consent to health care” for that child.

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B. Who has the right to consent to health care for a minor? (cont.)

. . “Others” who may authorize minors’ health care (continued…)

May be:

Legal guardian “Authorized agency” (ACS or DSS)

responsible for child in foster care – in some circumstances

Adoptive parent(s)

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B. Who has the right to consent to health care for a minor? (cont.)

. . “Others” who may authorize minors’ health care (continued…)

Case scenario:

Mary is 15 years old. Her parents died of AIDS. Mary’s aunt, Lucy, is her legal guardian.

Who is the person “authorized by law” to consent to health care for Mary?

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B. Who has the right to consent to health care for a minor? (cont.)

. . “Others” who may authorize minors’ health care (continued…)

Case scenario – answer:

Lucy— Mary’s aunt & legal guardian—is the person “authorized by law” to consent to health care for Mary.

This is because Lucy has been appointed Mary’s legal guardian (not because she’s her biological aunt).

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B. Who has the right to consent to health care for a minor? (cont.)

. . “Others” who may authorize minors’ health care (continued…)

Case scenario:

William is six years old and was placed in foster care during a child neglect proceeding against his parents. Who is the person “authorized by law” to consent to health care for William?

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B. Who has the right to consent to health care for a minor? (cont.)

. . “Others” who may authorize minors’ health care (continued…)

Case scenario – answer: it depends.

Generally, William’s biological parents would continue to authorize his health care.

BUT in some circumstances, the courts give ACS (or the local DSS) the authority to make health care decisions for a child in foster care.

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B. Who has the right to consent to health care for a minor? (cont.)

“Parent” used in this training means the person(s)

Who have legal authority to make health care decisions for a minor, and

Whose consent is needed for minor child to be given medical or other health care, when law requires parental consent.

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B. Who has the right to consent to health care for a minor? (cont.)

Since parents’ consent is usually needed to treat a minor child, parents must ordinarily be notified and involved in making health care decisions for a child under 18.

Consent of one parent is enough. The law does not say which parent must consent, or give priority to one or the other.

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B. Who has the right to consent to health care for a minor? (cont.)

Note: The person who is “authorized by law to consent to health care” for an individual is also often – but not always – the person authorized to consent, or not, to disclosures of confidential health information about that individual.

See Part Two, on Confidentiality.

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B. Who has the right to consent to health care for a minor? (cont.)

The flip side of NY’s general rule:

MINORS GENERALLY MAY NOT CONSENT TO HEALTH CARE ON THEIR OWN. Minors are NOT generally authorized by law

to consent to health care for themselves. Children under age 18 do NOT ordinarily

have the legal authority – or right – to make health care decisions on their own.

BUT . . .

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B. Who has the right to consent to health care for a minor? (cont.)

The flip side of NY’s general rule (cont.):

BUT SOME MINORS MAY CONSENT TO HEALTH CARE FOR THEMSELVES – WITHOUT PARENTAL INVOLVEMENT OR CONSENT.

When does that happen? See next slide…

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C. When may minors consentto own health care?

When may a minor consent on his/her own?One: NY law gives some individuals under 18 legal status as “adults” for purpose of making health care decisions for themselves.Two: NY law (and Constitutional privacy protections) allow minors to make reproductive health care decisions – not dependent on age. Three: NY law gives minors authority to obtain certain kinds of health care on their own, even if under 18, if they have “capacity to consent.”

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C. When may minors consent to own health care? (cont.)

1. Married minors 2. Pregnant minors3. Minor parents4. Emancipated minors5. Minors seeking health services for

specific health problems/conditions6. Emergency care

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C. When may minors consent to own health care? (cont.)

1. Married minors:

May consent to all health care

Marriage confers “adult” legal status for purpose of making health care decisions

Law assumes capacity to consent

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C. When may minors consent to own health care? (cont.)

2. Pregnant minors:

Have legal right to make own decision about prenatal care – includes almost all health care while pregnant & in labor/delivery.

Without parental notification, involvement, or consent.

Pregnancy confers “adult” legal status for purpose of making all prenatal care decisions.

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C. When may minors consent to own health care? (cont.)

2. Pregnant minors (cont.)

Where does this right come from? Constitutional right to privacy New York law (Public Health Law § 2504(3):

“Any person who is pregnant may give effective consent for medical, dental, health and hospital services relating to prenatal care.”

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C. When may minors consent to own health care? (cont.)

2. Pregnant minors (cont.)

Case scenario:

Jenny is 14 years old and pregnant and does not want her parents to know. She would like to get prenatal care, and aside from that, is not feeling well herself and needs to go to the doctor. If she makes an appointment at the doctor, does the doctor need to contact her parents?

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C. When may minors consent to own health care? (cont.)

2. Pregnant minors (cont.)

Case scenario – answer:

No: as a pregnant person, Jenny is “authorized by law” to access prenatal care. If Jenny has other health problems (e.g., strep throat), the can also get treated for that without parental consent because of the potential effect on the pregnancy.

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C. When may minors consent to own health care? (cont.)

3. Had a child – minor parents:

May consent to all their own health care Being parent confers “adult” legal status

for purpose of making health care decisions

Law assumes capacity to consent Parent/legal guardian may not override or

be asked for consent instead.

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C. When may minors consent to own health care? (cont.)

3. Minor parents (cont.)

May consent to own health care whether: Married or not Mother or father Paternity is legally established Is the parent with physical or legal custody

of the child, or Child’s other parent has voluntarily given up

parental rights or had rights terminated.

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C. When may minors consent to own health care? (cont.)

3. Minor parents (cont.)

May also consent to health care for their minor children, if child lacks capacity to consent, or is not authorized by law to consent on own to specific health services.

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C. When may minors consent to own health care? (cont.)

3. Minor parents (cont.)

Case scenario:

Wanda is a 17-year old girl and has a three-year old son. They both have the flu.

May Wanda consent to health care for both her & her son?

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C. When may minors consent to own health care? (cont.)

3. Minor parents (cont.)

Case scenario – answer:

Yes. As a parent, Wanda is the person “authorized by law” to consent to her own health care as well as the health care of her children.

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C. When may minors consent to own health care? (cont.)

4. Emancipated minorsEmancipation = renunciation of parental rights to a child. Means parents can no longer make decisions for their child.No clear definition for who or how to determine a minor is emancipated Courts generally consider a minor emancipated if:

Married, or In armed services, or Economically independent through work, or Parent failed to support minor and minor sought

emancipation

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C. When may minors consent to own health care? (cont.)

4. Emancipated minors (cont.)

May emancipated minors consent to own health care?

Courts have generally said “yes.”

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions –

Case scenario:

Maria is 17. She wants to get birth control. May she do so without notifying her parents?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions –

Yes: NY law also gives minors the right to obtain health care for

certain sensitive conditions/problems without parental notification or consent.

IF minor has capacity to consent, and gives informed consent. Reproductive health services, STDs, HIV (limited),

alcohol & drug, and mental health treatment

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions –

These sensitive health conditions include:

Reproductive health services STDs HIV (limited) Alcohol & drug use Mental health conditions

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C. When may minors consent to own health care? (cont.)

What is informed consent?

Knowing, voluntary and informed decision to undergo a particular treatment or diagnostic test/procedure

After being given the information reasonably needed to make a “knowledgeable evaluation” of the reasonably foreseeable risks and benefits of, and alternatives to, the proposed treatment or diagnosis.

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

Reproductive health services:

May consent to – Birth control Emergency contraception Abortion

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

STD testing/treatment – Case scenario:

What if 17-year old Maria just learned that her boyfriend has genital

herpes? Can she go to the doctor for a test & treatment without her parents finding out?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

STD testing/treatment – case scenario answer:

Yes: Minor may consent to STD testing/treatment without parent/guardian consent IF:

Can give informed consent Has capacity to consent NY Pub. Health Law § 2305(2)

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

HIV testing

Case scenario:

Daphne is 15 years old. She found out that a friend of hers got HIV after having unprotected sex with Daphne’s ex-boyfriend. Daphne is really scared she might have HIV. Can she get an HIV test without her parent’s knowledge or consent?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

HIV testing – Case scenario – answer:

Yes – if she has “capacity to consent.”

NY law generally prohibits HIV testing without informed consent.

Informed consent can be provided by:

Patient – including minor, if has “capacity to consent.” (See next slide)

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

HIV testing (cont.)

Recall: “Capacity to consent” means able to:

Understand/appreciate the nature & consequences of the proposed treatment or diagnosis, including risks, benefits & alternatives, and

Make an informed decision.

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.):

HIV testing (cont.)

Only if minor lacks capacity to consent: Parent/guardian may consent.

See NYS Pub. Health Law, Art. 27-F

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.)

HIV testing (cont.) -- But HIV testing is permitted without consent in some circumstances:

Newborns Accused or convicted sex offenders, upon victim’s

request, if ordered by court Lawsuit where blood of one party is at issue, if

ordered by court

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.)

HIV treatment – Case scenario:

Daphne tested positive for HIV. May the doctor provide her with HIV treatment without her parents’ consent?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.)

HIV treatment – case scenario answer:

Law does not clearly give minors the right to consent to own HIV treatment (unless minor has status of an adult, e.g., married, pregnant, a parent)

But . . .

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

HIV treatment – case scenario answer:

But some practitioners will provide HIV treatment to a minor without parental notification or consent if the provider determines that:

Minor is emancipated, or there is an “emergency” as per NY Pub. Health

Law § 2504(4) (discussed below)

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Mental health counseling & services:

Case scenario:

Daphne is really upset about her HIV diagnosis and is starting to get bad grades in school. She knows she needs mental health counseling. Can she get it without her parents’ knowledge or consent?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Mental health counseling & services:

Depends on type of services:

Outpatient Inpatient

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Mental health counseling & services (cont.):

Outpatient (including medication): Minor may consent if:

Knowingly & voluntarily seeks mental health services; and

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Outpatient (cont.):

Parent/guardian not reasonably available; OR

Provider determines that parental involvement would be detrimental to course of treatment, OR

cont…

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Outpatient (cont.):

Parent/guardian refused to give consent, and physician determines that treatment is necessary and in minor’s best interests.

See NYS Ment. Hyg. Law § 33.21(c)

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Mental health counseling & services (cont.):

Inpatient (including medication):

Minor may consent if: 16 years or older Other conditions apply

See NYS Ment. Hyg. Law § § 9.13(a) & 33.21

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services:

Case scenario:

Jose is 15. He contacted a drug treatment program because he has a drug problem and wants help. He’s afraid his mom will beat him if she finds out; she has abused him in the past. His dad is in prison. Does the program need parental consent to treat him?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services:

Case scenario – answer:

Law encourages parental involvement, but ...

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.): Minor may consent to outpatient or inpatient if:

In physician’s judgment, parental/guardian involvement & consent would harm treatment, OR

Parent/guardian refused to consent and physician believes treatment is in minor’s best interests

More…

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

“Qualified health professional” may make the decision if no physician on staff

See NYS Ment. Hyg. Law § 22.11

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

Similar rules for “preventive counseling” –

Parental consent should be sought when possible

BUT . . .

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

Similar rules for “preventive counseling” –

BUT is not necessary if child refuses permission to contact parents or professional believes contact with parent would not be helpful or would be harmful to child.

See 14 NYCRR Part 305

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.): Case scenario:

Frank is 16. He made an appointment at an alcoholism program and signed a release form for the program to contact his parents so they could authorize his treatment. The program left four messages, but Frank’s parents did not return their call. Frank says his parents are high a lot and pretty much let him do whatever he wants. May the program treat Frank?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.): Case scenario – answer:

Minor may also consent to outpatient or inpatient if:

Provider cannot locate parents/guardian after taking “reasonable measures” to do so, OR

If parent/guardian refuses or fails to communicate with provider, and

More…

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

Case scenario – answer:

Program director authorizes the treatment Must document reasons & efforts to locate

parent/guardian. See NYS Ment. Hyg. Law § 22.11

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

When admitting minors to inpatient or residential treatment without parent/guardian consent:

Minor must sign form stating – Voluntarily seeking treatment and Has been advised of availability of legal counsel. See NYS Ment. Hyg. Law § 22.11(d)

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

Case scenario: Would it be different if Frank had fathered a child?

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C. When may minors consent to own health care? (cont.)

5. Minors seeking health services for specific health problems/conditions (cont.) –

Alcohol & drug abuse services (cont.):

Yes. As a parent, he has the rights of an adult to make his own health care decisions.

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C. When may minors consent to own health care? (cont.)

6. Emergency care

Minor may receive medical, dental, health & hospital services without parental consent if:

“emergency” exists, person is in immediate need of medical attention and an attempt to get consent would delay treatment and increase risk to patient’s life or health

NY Pub. Health Law § 2504(4)

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C. When may minors consent to own health care? (cont.)

BUT even if a minor can authorize own health care without parental consent, who will pay?

Some providers have special funds to treat minors who are not involving their parents in their health care decision-making;

If private insurance or Medicaid, parents might find out if receive – and read – “explanation of benefits” statement.

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Part 2: Confidentiality – Minors and Health care

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Balancing interests Confidentiality of minors’ health

information is a difficult balancing act.

Parents want and often need to be involved.

But minors sometimes will avoid getting help if parents are notified.

Confidentiality laws seek to strike a balance.

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Relevant Laws What laws govern confidentiality of health

information – for minors and others? General health info:

HIPAA NYS Pub. Health Law § 18(2)

HIV – Art. 27-F, NYS Pub. Health Law

Alcohol/drug treatment: 42 C.F.R. Part 2

Mental health: NYS Mental Hygiene Law § 33.16

STDs: NYS Pub. Health Law § 17

Reproductive care: U.S. Constitution & NYS Public Health Law § 2504(3)

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Relevant Laws (cont.)

What laws govern confidentiality of health information – for minors and others? Also:

Licensing standards for the professionsExamples: Social work Doctors Nurses Psychologists Alcohol/drug counselor

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HIPAA Generally

Establishes a federal floor of safeguards to protect the privacy of medical records and other “personal health information.”

Applies to health information transmitted in any form: electronically, or oral.

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HIPAAWho is Covered?

“Covered Entities”:

• Health Care Providers that transmit health information electronically in connection with billing & related activities (“covered transactions”)

• Health Plans, and

• Health Care Clearinghouses

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When Federal & State Laws Regulate the Same Subject

HIPAA pre-empts any “contrary” state law provision except when, among other things:

The state law relates to privacy AND is “more stringent” than the HIPAA provision.

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HIPAAMore Stringent Test

Provides greater privacy protection for the individual who is the subject of

protected information.

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What is NYS Pub. Health Law § 18(2)?

Governs patients’ and others’ (including parents’) access to medical records in NYS.

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What is Article 27-F of NYS Pub. Health Law?

New York State law that governs: • HIV testing• HIV confidentiality • HIV reporting • HIV partner notification

• Also note related provisions about HIV case reporting in Pub. Health Law §§ 2130-2139

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Article 27-F Who is Covered?

ANY person who receives HIV-related information about a protected individual:

•while providing a covered “health or social service” ex: doctors, foster care agencies, school

nurses

OR

•pursuant to a proper written consent

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Article 27-F Who is Covered (cont.)?

ANY governmental agencies that:

• provide, supervise or monitor health or social services

Examples: ACS (DSS), DOCS, HRA

OR

• obtain HIV related info pursuant to Article 27-F

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Article 27-F Does NOT apply to: Protected individuals themselves Friends, relatives Courts Insurers Pharmacies Federal agencies (military, federal prisons) Schools (except medical staff) Employers

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Article 27-F Does NOT apply to (cont.) :

BUT other laws may protect confidentiality.

Examples:• U.S. Constitutional right to privacy – applies to

government• Americans with Disabilities Act – applies to employers• Privacy Act – applies to federal government

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Article 27-F Who is Covered (cont.)?

Case scenario:

Amber is a 12 year old student at a NYC middle school. Her mom told Amber’s teacher that Amber is HIV-positive. She asked the teacher to keep it confidential. The teacher told other teachers, and before long, students were shouting mean things to Amber about having HIV.

Was the teacher allowed to disclose Amber’s HIV status?

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Article 27-F Who is Covered (cont.)?

Case scenario – answer:

The teacher’s disclosure did not violate Art. 27-F of the Pub. Health Law because schools are not bound by that law (except medical staff). Neither are classroom teachers bound by HIPAA.

BUT public schools must uphold the right to privacy under the U.S. Constitution.

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What’s the Law?The General Rule

HIPAA: A covered entity may not “use or disclose” protected health information which is created or received by a covered entity AND relates to the past, present or future physical or mental health of an individual.

Article 27-F: Health & social service providers AND people who receive HIV related info pursuant to written release may not disclose (or redisclose) any HIV related information about a protected individual.

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Article 27-F HIV Related Information Includes:

• Had an HIV test• Had negative HIV test results• Has HIV infection or HIV related illness or

AIDS• Has an HIV related condition • Takes medication specific to HIV disease • Is a contact of someone with HIV

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Article 27-FProtected Person

• Person who has HIV

• Person who has had an HIV test

• “Contacts” (spouse, sexual partner or needle-sharing partner)

• Doesn’t have to be your client/patient

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Properconsent

Health care providers/facilities

THE GENERAL RULE:

A provider may not disclose any HIV-related information about any protected individual.

Internal communications

Proper form

- specifically authorized disclosure of HIV- name of protected individual- name of provider- name of recipient- reason/purpose- dated- time period consent effective- signed

Court order

HIV/AIDS case notification

Parents/legal guardians

(very limited)

Other:- review/monitoring- foster care/adoption- third party payers- newborns- sex offenders- criminal justice agencies- child/elder abuse/neg.- occupational exposure

Contact notification

New York State HIV/AIDS Confidentiality Law

Exceptions: conditions permitting disclosures

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To protected individual

May disclose HIV-related information to “protected individual”

Or, if lacks capacity to consent, to person authorized to make health care decisions for that individual.

What does this mean for HIV+ minors?

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To protected individual (cont.)

Case scenario:

Whitney is 14 years old. She was infected with HIV at birth. Her mom died of AIDS, and she lives with her father. Her father does not want Whitney to know her HIV status and tells her she has treatable blood cancer.

Whitney’s doctor believes Whitney should know her HIV status so that she can participate in her own care and because she is becoming sexually active. But he cannot convince her father to permit the disclosure.

May the doctor tell Whitney over her father’s objection?

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To protected individual (cont.)

Case scenario – answer

Legally – Yes. Health care providers may disclose HIV-related information to the “protected individual” if she has capacity to consent. Whitney’s doctor does believe she has capacity to consent, so the doctor could legally tell Whitney that she’s HIV positive, even over her dad’s objection.

BUT. There are other important considerations….

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To protected individual (cont.)

Case scenario – answer (cont.)

Disclosure to Whitney is also an implicit disclosure of her deceased mom’s status.

Did Whitney know her mom died of AIDS? If not, this will be additional potentially traumatizing information.

Will Whitney wonder if her dad is also infected, and maybe even is the source of her mom’s infection?

If her father is angry about the disclosure, might he stop taking Whitney to that health care provider?

ALL of these factors must be taken into consideration.

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Consent for disclosure

Voluntary & revocable at any time Written Contain specific elements required by

both HIPAA & Art. 27-F Form must be approved by DOH (see

DOH form)

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Capacity to Consent

Whether the individual, regardless of age, has the ability to:

1. Understand & appreciate the nature & consequences of proposed disclosure

AND

2. Make an informed decision about whether or not to permit the disclosure

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Capacity to Consent (cont.)

Reminder (from Part 1):

Minors can have capacity to consent. No age cut-off.

If minor lacks capacity to consent, disclosure can be authorized by:

Biological or adoptive parent Guardian “authorized agency” (ACS or DSS) – if court

granted the authority

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Article 27-FNo Redisclosure

Person receiving HIV related information pursuant to consent may not redisclose

Person providing HIV related information pursuant to consent must provide notice prohibiting redisclosure. See sample.

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Article 27-FInternal communications

Agency staff may share HIV related information IF the staff members:

•Are allowed access to client records in ordinary course of business; •Are specifically authorized in the agency’s written “need-to-know” protocol; •Have a reasonable need to know or share the information to carry out their authorized duties

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Must make reasonable efforts to limit information to the “minimum necessary” to accomplish the intended purpose

HIPAA:Minimum Necessary Standard

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Disclosures to Other Health Care Providers

Case scenario:

Jack, a 13-year old, was diagnosed with HIV by his primary care doctor. The doctor wants to make Jack an appointment with a specialized HIV clinic.

May the doctor’s office disclose Jack’s HIV status to the HIV clinic without his consent?

Does the doctor need the consent of Jack’s parents?

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Disclosures to Other Health Care Providers (cont.)

Case scenario – answer: Yes

May disclose HIV related information to a health care provider or health facility when person with the information reasonably determines that the information is necessary to provide care to:

1. The individual2. His or her child OR3. A contact

BUT. . . .

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Disclosures to Other Health Care Providers (cont.)

Case scenario – answer: Yes

But it is always preferable to try to obtain written informed consent.

If consent can not be obtained, document the disclosure & why it was necessary.

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Disclosures to Other Health Care Providers (cont.)

NOTE:

Disclosures about newborn’s HIV status is always considered necessary (per DOH)

Medical Society of NY resolution: exchange of HIV information from one medical provider to another treating/consulting medical provider is routinely necessary for the latter’s proper evaluation and treatment of patient. Some others disagree; need always case by case evaluation.

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Physicians’ Disclosures about Minors

Case scenario:

Wanda is 14. She tested positive for HIV after having unprotected sex with a boy in school. She does not want her mom to know because she is believes that her mom will make her leave home.

May her doctor disclose her HIV test results to her mom?

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Physicians’ Disclosures about Minors (cont.)

Case scenario – answer: No.

Physicians may only disclose a minor’s HIV status to parents, without consent, if all four of the following factors weigh in favor of notification…

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Physicians’ Disclosures about Minors (cont.)

Physicians may disclose HIV related information about minors to the parent/guardian without consent, IF:

1. Medically necessary to provide appropriate care or treatment to minor

2. Minor will not inform parent/guardian, even after counseling.

3. Parent/guardian has authority to make decisions for minor regarding this specific care or treatment AND

4. Disclosure NOT against minor’s best interests.

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Physicians’ Disclosures about Minors (cont.)

How does this apply to Wanda?

1. Is the disclosure medically necessary to provide appropriate care or treatment to Wanda?

Does she need HIV treatment now? If not, then disclosure without consent is not appropriate.

If she does need HIV treatment now, can she receive it without parent consent? (See Part 1)

If she needs HIV treatment and can not receive it without parental consent, then…

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Physicians’ Disclosures about Minors (cont.)

How does this apply to Wanda? (cont.)

2. Does Wanda refuse to inform her mom, even after counseling? If so, . . .

3. Does Wanda’s mom have the authority to make decisions for minor regarding this specific care or treatment? AND

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Physicians’ Disclosures about Minors (cont.)

How does this apply to Wanda? (cont.)

4. Is the disclosure against Wanda’s best interests?

For Wanda, disclosure would be against her best interests if it would result in her being homeless. Therefore, her doctor may not disclose her HIV test results to her mom.

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Article 27-FCase Reporting

Physicians & labs who diagnose HIV are required to report every case of HIV infection, HIV related illness and AIDS diagnosis to DOH

Report to State DOH

State rediscloses contact info to local DOH for contact notification

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Article 27-FCase Reporting (cont.)

Physicians report to DOH:

Known contacts Domestic violence risk Whether contacts have been notified

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Article 27-FPartner Notification

ONLY physicians and special DOH staff are permitted to notify named partners of HIV infected individual

NO ONE ELSE is permitted to do partner notification (unless HIV+ person consents)

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Article 27-FPartner Notification (cont.)

Physicians may notify contact of possible HIV exposure & infection IF:

Significant risk of infection Counsels patient about need to notify Does domestic violence screen Informs patient that –

Intends to notify & must tell DOH May state a preference: have DOH notify

instead of physician (but Dr. need not honor preference)

Source person’s name won’t be revealed

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Article 27-FPartner Notification(cont.)

Case scenario:

Larry is 21 years old. He recently tested positive for HIV. During his post-test counseling session, he told his doctor that he recently had sex with a 15-year old girl, Melissa.

Is the doctor required – or permitted – to notify the following people/agencies about Larry’s HIV test results & his relationship with Melissa:

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Article 27-FPartner Notification(cont.)

Case scenario – answer:

Melissa: no legal duty. But may notify her that she has been exposed to HIV (but not the name of the source) after following protocol for optional physician-conducted partner notification.

More on next slide…

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Article 27-FPartner Notification(cont.)

Case scenario – answer (cont.):

Melissa’s parents: No

If the doctor performs an HIV test on Melissa, however, and she tests positive, then the doctor might be able to notify her parents without her consent if all four conditions for parent notification are met. (See slide in “Physicians’ Disclosure about Minors.”)

More on next slide…

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Article 27-FPartner Notification(cont.)

Case scenario – answer (cont.):

DOH: yes. Required to give names of all known “contacts,” which here, include Melissa. DOH might conduct partner notification.

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Article 27-FPartner Notification(cont.)

Case scenario – answer (cont.):

What about “statutory rape?” Did Larry commit statutory rape? If so, should/can someone report this to the police?

Larry did commit statutory rape, which occurs when -- Someone 21 years or older has sexual

intercourse with someone (not spouse) less than 17 years old, or

Someone over 18 has sex with person, not spouse, under age 14.

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Article 27-FPartner Notification (cont.)

Case scenario – answer (cont.): DOH may report the “statutory rape” to the

police.

Larry’s doctor could report the statutory rape to the police, but only without revealing:

HIV information That caller is Larry’s doctor

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Article 27-FPartner Notification (cont.)

Case scenario – answer (cont.):

ACS (or DSS): is this reportable child abuse? No, because Larry isn’t legally responsible for Melissa’s care. Might be different if:

Larry lived in Melissa’s house and was Melissa’s mom’s boyfriend

Melissa’s mom knew Larry was HIV+ and was having sex with Melissa & didn’t try to stop it

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Art. 27-FChild abuse reporting

If Larry’s sex with Melissa were reportable child abuse –

would Larry’s doctor be permitted to report it without violating Article 27-F?

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Art. 27-FChild abuse reporting(cont.)

Yes. Art. 27-F permits health & social service providers to disclose HIV information if it’s necessary to comply with child neglect/abuse reporting laws.

BUT only may disclose HIV-related info if relevant to neglect/abuse charge. Here, it would be relevant.

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Article 27-FFoster care & adoption

If an adolescent in foster care tests positive for HIV, who gets told?

Depends on who arranged for the HIV test & who is making the disclosure . . .

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Article 27-FFoster care & adoption (cont.)

If adolescent goes independently to a doctor or HIV testing center (foster care agency did not arrange it), then:

As with adolescents not in foster care, doctor

must assess adolescent’s capacity to consent – to HIV test and to disclosure of results.

If adolescent does not have capacity, then the test can not be performed without consent of person authorized to make health care decisions for the adolescent.

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Article 27-FFoster care & adoption (cont.)

Reminder: who has authority to make health care decisions for adolescents in foster care?

Unless minor has a child, is married, or is emancipated, authority remains with biological parent unless court gives authority to ACS (or local DSS).

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Article 27-FFoster care & adoption (cont.)

If adolescent goes independently (cont.)

If adolescent has capacity, doctor –

may not disclose HIV test results without adolescent’s consent unless doctor invokes exception for disclosure to parent/guardian, discussed above (and reiterated on next slide).

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Article 27-FFoster care & adoption (cont.)

Reminder – Physician notification of parent about minor:

1. Medically necessary to provide appropriate care or treatment to minor

2. Minor will not inform parent/guardian, even after counseling.

3. Parent/guardian has authority to make decisions for minor regarding this specific care or treatment, AND

4. Disclosure NOT against minor’s best interests.

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Article 27-FFoster care & adoption (cont.)

What if foster care agency arranged the HIV test?

Doctor must disclose results to foster care agency.

BUT before taking the test, the adolescent should be told that this disclosure will occur and be given the option to do anonymous testing instead.

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Article 27-FFoster care & adoption (cont.)

Is the foster parent entitled to know the adolescent’s HIV status?

Physicians have no obligation to disclose foster child’s HIV information to foster parent & may not do so without consent of person authorized to make health care decisions for the adolescent.

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Article 27-FFoster care & adoption (cont.)

Is the foster parent entitled to know the adolescent’s HIV status? (cont.)

Foster care agencies, however, must disclose HIV information to foster parents even if the adolescent has capacity to consent and objects to the disclosure. This is why anonymous test option must be presented to adolescent before taking test.

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Article 27-FFoster care & adoption (cont.)

Limits on foster parent’s redisclosure:

Even though foster care agency must disclose HIV test results to foster parent, foster parent may not redisclose unless –

Necessary for the care, treatment or supervision of the child.

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Article 27-FFoster care & adoption (cont.)

What about the biological parents’ HIV status?

Authorized agencies –

must give prospective & current foster/adoptive parents the medical history (including HIV info) about biological parents

BUT identity of bio parent may not be disclosed without consent or court order

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Article 27-FComplaints & Violations $5,000 civil fine criminal penalty if willful private right of action (can sue) file complaint with DOH: (800) 962-5065

For violation of testing provision: Can bring medical malpractice suit File complaint with DOH

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Confidentiality: Alcohol/Drug Treatment (cont.)

Case scenario:

On Monday, 14-year old Carla was admitted to inpatient drug treatment program with her parents’ consent. On Friday, her mom called her counselor to see how Carla was doing.

Carla did not want her counselor to talk to her mom about her treatment.

Was the counselor permitted to speak to Carla’s mom over Carla’s objection?

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Confidentiality: Alcohol/Drug Treatment (cont.)

Case scenario – answer:

No disclosures to parent without minor’s consent.

This is so regardless of whether – minor consented to own treatment OR parent consented to minor’s treatment.

See 42 CFR § 2.14 & Ment. Hyg. Law § 22.11

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Confidentiality: Alcohol/Drug Treatment (cont.)

Also need parent’s consent for disclosures if –

Parental consent to treatment was required under NYS law.

Conversely, do not need parent’s consent for disclosures if parent’s consent was not required for treatment under NYS law.

See 42 CFR § 2.14

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Confidentiality: Alcohol/Drug Treatment (cont.)

Exception for minor applicants who lack “capacity for rational choice”:

Alcohol/drug program may notify minor’s parent/guardian of the minor’s application for treatment without minor’s consent only if NYS law requires parental consent to treat this minor, AND the program director judges that:

Minor applicant lacks capacity because of extreme youth or physical/mental condition to make a rational decision on whether to consent to disclosure to minor’s parent/guardian, and

A “substantial threat” exists to life or physical well being of the minor applicant or other person that may be reduced by communicating with parent/guardian. 42 CFR § 2.14(d)

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Confidentiality: Mental Health

Info about minor’s treatment generally cannot be disclosed without minor patient’s consent

But psychiatrist may reveal info to parents if significant risk of danger

See Mental Hyg. Law § 33.16(b)(2)

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Confidentiality: Mental Health (cont.)

Parent generally can access records if parent consents to treatment,

But not if treating practitioner determine that access would harm:

Practitioner’s relationship with minor patient; Care/treatment of minor patient; or Minor’s relationship with parent.

Minors 13 and older get notice of parent’s request to access records. Can object.

See NY Mental Hyg. Law § 33.16(b)(3)

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Confidentiality: STDs No release of STD treatment information

about minors without minor’s consent.

But health care providers must report “communicable diseases” – including chlamydia, syphilis, and gonorrhea – to NYS-DOH & NYC-DOH.

DOH must maintain confidentiality.

See NYS Pub. Health Law § 17 & NYC Adm. Code

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Confidentiality: Reproductive Health Care

Health care providers may not disclose to parents information about:

Family planning services, including emergency contraception

(see court precedent)

Pregnancy: including abortion (see NYS Pub. Health Law § 2504(3); NYS Pub.

Health L. § 17.)

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Who’s the Legal Action Center? Anti-Discrimination & Privacy

work:

People with criminal records, alcohol/drug histories, and/or HIV/AIDS

Legal services & litigation Advice to providers Trainings Policy advocacy & research

150

Free Legal ServicesIncluding –

HIV testing & confidentiality

Discrimination based on: HIV status Alcohol/drug history Criminal record –

Rap sheet review and error correction Certificates of Relief and Good Conduct Job & Housing Discrimination

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Call on us for help!

Legal services for people affected by HIV/AIDS – statewide!

Training on HIV-related legal issues for HIV service providers – statewide!

Hot-line and technical assistance on HIV-related legal issues – statewide!

Legal Action Center: 212-243-1313 or 800-223-4044

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How to get help? Call the Legal Action Center

212-243-1313 800-223-4044 (toll-free)

Clients: Ask for “paralegal on call”

Providers: Ask for “attorney on call” Monday – Friday, 1 to 5 pm