HIPAA Regulatory Alert: How to deal with minors under HIPAA

One of the problems facing providers under HIPAA will be how to deal with minors, including newborns.

Health care attorney Susan Bonfield of Fox Rothschild in Philadelphia, notes that the final privacy regulations eliminated the requirement that there be a specific consent to use or disclose protected health information.

Now providers can obtain a written acknowledgement in whatever fashion they like and, in an emergency, document good-faith efforts if they are unable to obtain a written acknowledgement. "They still need to provide a notice," she says. "It made it easier in that it eliminated one mandated document, but the spirit of the requirement is still there."

According to Bonfield, one problem area for providers is newborns, who are people entitled to their own notice. The mother always will be the personal representative, she points out. "You might have a case where a mother is deemed not competent," she explains. "Likewise, the mother might be a minor." In those cases, Bonfield says providers must look to the state law. For example, it may be reasonable to have some sort of waiting period as long as the notice explains what is going to happen.

When it comes to minors covered by their parents' health plans, she says a different set of questions must be addressed. If a minor turns 18 and is covered by the parents' health plan, one of the issues that will arise is whether the minor must be informed about the existence of a notice. "The HIPAA regulations say you don't, but there is a sense among some health plans that you should," she says.

Another issue that providers will confront dealing with minors involves states where the majority age is at variance. For example, the majority age in New Jersey is 18, while it is 21 in Pennsylvania. "This raises the question of what to do when a New Jersey provider receives a Pennsylvania resident for services who is 20 years old," says Bonfield. "There is going to have to be some close scrutiny regarding the different state laws."

She says these are just some of the areas providers should consider when they are drafting procedures on minors and notices. "Once you understand HIPAA, and you start drafting procedures, you suddenly realize that you are going to have to think through some of these real-life situations," she explains.

Bonfield says that if health plans opt to provide only one notice to the person who is listed as the policyholder and it is his or her responsibility to pass it on to everybody else, that is their right under the law. However, she says, plans must provide notice every three years that the notice is available. "The question is whether that should go to all enrollees as opposed to just the enrolled individual," she says.