As physicians, we are now required to comply with the new privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The regulations became official on April 14, and cover those of us who use electronic transactions for health information such as medical records. Since we all have many questions about these complex regulations, the AACAP website, www.aacap.org, includes a special section, "HIPAA COMPLIANCE" which has links to resources within the federal government and related associations that will help us understand our legal responsibilities.
The important sections for AACAP members within the privacy regulations are those dealing with children and adolescents (unemancipated minors) and with psychotherapy notes. The AACAP, in its comments on the draft regulations, recommended the right for minors to have privacy over their medical records. The final rule side-stepped the issue by leaving much of the privacy rights decision to the states by allowing "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." It will be important for AACAP members to research the privacy laws in their state because the exceptions that allow a minor to act as an individual under the federal law hinge on those laws.
There are three situations when the parent would not be the minor's personal representative under the privacy rule. "These exceptions are: (1) 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; (2) when the minor obtains care at the direction of a court or a person appointed by the court; and (3) 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." This interpretation of the HIPAA regulation can be found using the AACAP web homepage link to the Department of Health and Human Services Office of Civil Rights.
All psychiatrists should review the psychotherapy notes provision of HIPAA. AACAP comments on the draft regulations recommended that psychotherapy notes not be included in an individual's general medical record, and the final privacy rule does place them in the "protected health information" section and define them as notes that are separated from the rest of the medical record. However, there are exclusions to what can be in the notes, and you are urged to use the AACAP link to access and review the special materials available on the members-only section of the APA website, www.psych.org, concerning psychotherapy notes.
If you have questions, the AACAP Department of Government Affairs will help find answers. Please contact Kristin Kroeger-Ptakowski, 1.800.333.7636, extension 108, kkroeger@aacap.org.
