If you have never been denied access to your child’s medical records, you may be unaware of the patchwork of laws that generally grant parental rights to them. However, both federal and state laws govern aspects of parental rights to access their children’s medical records, and there are many exceptions to the general rule of access.
The HIPAA Privacy Rule and Child Medical Records
The main federal law that relates to a parent’s ability to access her child medical records is the Health Insurance Portability and Accountability Act. Nearly everyone has some basic level of familiarity with HIPAA because doctors must provide patients with privacy notices as a result of this law. Doctors require their patients to provide consent to allow medical information to be provided to certain people, known under the law as “personal representatives.”
What you may not realize is that, for the most part, HIPAA’s Privacy Rule allows you, as a parent, to access your child’s medical records as long as doing so does not contravene another law. The Privacy Rule considers you to be your child’s “personal representative” eligible to receive his or her medical information.
If any of the following apply, you are not considered your child’s personal representative and are therefore usually unable to obtain your child’s medical information:
- When state law only requires your child’s consent (see list below);
- When your child receives health care pursuant to a court order or the request of a person appointed by the court;
- When you agree that your child has a confidential relationship with a health care provider;
- When your child’s health care provider reasonably believes that allowing you to serve as your child personal representative could endanger your child; or
- When your child’s health care provider reasonably believes that your child has been subjected to domestic violence, abuse, or neglect or that your child will be subjected to these in the future.
As you might expect, California has many laws that impact parents’ ability to obtain their child’s medical records. The most general provision is located in California Family Code § 3025, which provides rights, even to noncustodial parents, to a child’s “medical, dental, and school records.”
You will recall that the HIPAA Privacy Rule specifically disallows parental access to records when state laws allows minors to consent for their own procedures. Here is a summary of procedures for which minors may consent in California:
- Minors of any age may consent to birth control (except sterilization), pregnancy, abortion, and sexual assault;
- Minors 12 years of age or older may consent to receive HIV testing (if competent to provide informed consent); federally assisted alcohol and drug counseling; outpatient mental health treatment; and treatment for STIs, contagious, and reportable diseases.
- Birth control;
- STIs, contagious, and reportable diseases;
- HIV testing; and
- Federally-assisted alcohol and drug counseling.
All of these situations are devastating to families, and it can be extremely frustrating for a parent not to be able to obtain records or information relating to their children. At the Law Offices of Judy L. Burger, we understand how important your children are to you. Make the call today to learn how our attorneys can advocate for you: (415) 293-8314.