Tuesday, November 01, 2005
By Daniel J. Schulte
MDA Legal Counsel
Published in the November 2005 issue of the Journal
Question: I treated a minor patient this morning and discovered evidence of what I believe to be an eating disorder. Can I disclose this close this suspicion and the evidence to the parent of this minor patient?
Answer: Yes. The Health Insurance Portability and Accountability Act’s Privacy Rule generally limits disclosure of dental record information to those using such information for treatment, payment and health care operations purposes. Arguably, the "treatment" purpose would be considered broad enough to include informing a minor’s parent of matters concerning his or her dental care. HIPAA does, however, contain a specific provision allowing disclosure of the minor’s dental record information to a parent.
Whenever a parent consents to treatment of his or her minor child, HIPAA considers the parent to be the "personal representative" of the minor child. This is a significant designation because pursuant to HIPAA’s Privacy Rule a dentist must treat such a personal representative the same as the patient for purposes of applying the HIPAA restrictions on disclosure and the rights of access granted to dental record information.
Under Michigan law, a parent or legally appointed guardian’s consent is necessary prior to a dentist or another provider of health care services being able to provide treatment to a minor patient in most non-emergency situations. Therefore, since in most cases a parent’s consent to the treatment of a minor son or daughter is required, the parent will be deemed by HIPAA to be a personal representative. This means that the parent has the same right to receive information that the minor patient does, and disclosures to the parent can be made freely.
There are, however, a few special circumstances where, under Michigan law, parental consent to treatment is not required and therefore the parent would not be considered to be a personal representative of the minor patient. These special circumstances are contained in Michigan’s Public Health Code. A minor, acting alone, may give binding consent to treatment for medical services related to: (1) substance abuse; (2) sexually transmitted diseases; (3) pregnancy; and (4) mental health treatment (if the minor is 14 or older). In these cases where parental consent is not required, HIPAA defers to Michigan law to determine the right of the parent to obtain information regarding the treatment provided to the minor related to one of these conditions. In the case of treatment for substance abuse, sexually transmitted diseases and pregnancy, Michigan law provides that the health care provider may choose to either: (i) inform the parent about the treatment given or needed, even over the objections of the minor patient; or (ii) to withhold the information in the health care provider’s discretion. In the case of a minor more than 14 years of age obtaining mental health services, the health care professional is barred from informing a parent regarding the treatment, unless there is a compelling need for the disclosure based on a substantial probability of harm to the minor or another individual.
Therefore, it appears that in most, if not all, cases dentists should freely be able to make complete disclosure of a minor patient’s dental record information to the minor’s parent or legally appointed guardian.