Special Issues in Adolescent Medicine: Medical and Legal Aspects of Care in Adolescent Medicine : Clinical Obstetrics and Gynecology

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Update on Malpractice and Medical Legal Issues in Ob/Gyn

Special Issues in Adolescent Medicine: Medical and Legal Aspects of Care in Adolescent Medicine

Swedler, Jane MD*; Alderman, Elizabeth M. MD

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Clinical Obstetrics and Gynecology 66(2):p 298-311, June 2023. | DOI: 10.1097/GRF.0000000000000773
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Abstract

Providing medical care and managing the health care needs of adolescents can be a complex process. Knowing, which adolescents can consent to health care and the scope of services adolescents can consent to, what information can be kept confidential and from whom, under which circumstances information must be disclosed, and how to navigate parental involvement, is vital for the practice of adolescent medicine. This chapter aims to address some of these issues and assist health care providers in gaining knowledge and expertise in the optimal delivery of care for adolescents.

Introduction

Providing medical care and managing the health care needs of adolescents can be a complex process. Knowing, which adolescents can consent to health care and the scope of services adolescents can consent to, what information can be kept confidential and from whom, under which circumstances information must be disclosed, and how to navigate parental involvement, is vital for the practice of adolescent medicine. Medical providers are ethically obligated to ensure the welfare of adolescents while minimizing the risk of harm. This entails being knowledgeable about and abiding by state and federal laws that govern adolescent consent and confidentiality. These laws vastly differ from state to state, as well as from federal regulations.1 In addition, many of these laws are not consistent with the pediatric and adolescent medicine society's guidelines for standards of care of adolescents, which support confidential care for certain medical services.2–6 The level of difficulty is further increased as providers must also have the skill set to manage the delivery of care to adolescents whose health care needs, such as reproductive health, may conflict with the wishes of their parents or legal guardians.

An expansive evidence-based research demonstrates that adolescents are more likely to seek health care for confidential medical issues such as reproductive health care, mental health, and substance use if they can provide their own consent for treatment without involving their parents and if they can be assured of the confidentiality of their health information.7–9 Within the last 3 decades, numerous national medical organizations such as the American Academy of Pediatrics, the Society for Adolescent Health and Medicine, the North American Society for Pediatric and Adolescent Gynecology, the American College of Obstetricians and Gynecologists, the American Medical Association, and the American Academy of Family Physicians have issued position statements and guidelines supporting confidential care for adolescents.2–6 However, legally, parents and guardians are responsible for decision-making regarding the preventive health care of their minor adolescents. Although state laws and regulations exist that support and legalize minor adolescent autonomy in accessing health care, there are significant inconsistencies between state laws in the latitude of the minor’s legal rights versus the rights of their parents, which can challenge the provider in how best to address the possible conflicting objectives of their minor patients and those of their parents.1 This chapter aims to address some of these issues and assist health care providers in gaining knowledge and expertise in the optimal delivery of care for adolescents.

Legal Issues

CONSENT

All adult patients who receive medical care, treatment, or services must be able to provide consent of their own free will, and therefore, adults for the most part have the legal right to consent to their own health care. The age of majority is 18 years of age in almost all states, except for Alabama and Nebraska, which set it at 19 years of age, and Mississippi, which sets it at 21. Therefore, for most of the states, patients under the age of 18 are considered minors.10

To be able to legally consent to medical health care, patients must voluntarily agree to a proposed treatment and must have the capacity to consent. This means that they must understand their medical condition, the nature and purpose of the proposed and alternative treatments, and the predictable risks and benefits of the proposed and alternative treatments. Consequently, patients who have the capacity to consent to a health service can also decline to receive any treatments.

INFORMED CONSENT

Informed consent refers to the process of communication between health care providers and patients that would result in agreement and authorization of the provision of medical care, treatment, or services. Medical providers are obligated both legally and ethically to obtain informed consent from patients before providing any treatment.11 This does not necessarily need to be a signed consent, and is dependent on the nature of the treatment. However, it is important to document that the risks and benefits were explained to the patient and that the patient expressed understanding.

Whereas adults are generally presumed to have the capacity to consent, a patient who does not understand all of the above cannot give informed consent regardless of age. As such, adult patients with intellectual disabilities may not be able to provide informed consent and instead, their legal guardians should provide this on their behalf.

LEGAL STATUS AND MINOR’S RIGHTS TO CONSENT TO MEDICAL HEALTH CARE

Sources of Law and Ethical Obligations

A minor’s ability to provide consent to medical care and services is governed by state laws and statutes, and these laws differ from state to state.1 It behooves the health care provider to familiarize themselves with their relevant state laws with regard to adolescent consent. The legal rights of adolescents to consent to medical services are based on principles of established standards of care for adolescents, which support confidential care for certain medical services. Therefore, most states recognize specific categories of minors that may be able to provide their own medical consent for limited health care services and treatments, such as emancipated minors and mature minors. However, even when a minor has the legal right to consent to specific medical care, the scope of confidentiality protection for these services will vary according to state and federal laws. A detailed discussion of confidentiality issues relevant to adolescent care will be addressed in a later section of the chapter. Updated information regarding individual state laws regarding adolescent rights to consent to health care can be accessed through the Guttmacher Institute.12–14.

Emancipated Minors

Emancipation is the process, by which a minor can obtain legal rights as an adult before attaining the legal age of majority. State laws define the conditions needed to permit a minor to be emancipated from their parents or legal guardians,15 and if a formal court proceeding is required. Legal emancipation of a minor relieves their parents and guardians from all legal responsibility for the minor. As such, emancipation confers the legal right to a minor to consent to all their own health care.

Under certain conditions, minors who have not been legally emancipated may still be allowed to make their own decisions regarding medical treatment, either generally for all services, or limited in scope depending on state law. Some examples of emancipated minors include married minors (or those who were married), parenting minors, pregnant minors, minors who enter military service, minors who are economically independent of their parents or guardians, homeless minors, incarcerated minors, and mature minors.16

Mature Minors

The mature minor doctrine is a rule of law, which acknowledges that a minor patient may possess the maturity and the capacity to understand the risks and benefits of proposed and alternative treatments and, therefore, be able to consent or refuse consent to such treatment16,17 As such, the doctrine recognizes that mature minors can sometimes give consent to low-risk medical treatments without the knowledge or agreement of parents or guardians. The mature minor doctrine is generally the basis for states allowing minors to access and provide their own consent for services such as reproductive health care as well as mental health and substance use care.

The definition of a “mature minor” differs from state to state, and as noted, not all states have established statutes or court decisions.18 Within the United States of America, at the time of this writing, 34 states have no legal exceptions in place for mature minors and only 14 states permit mature minors to consent to general medical treatment.15 Only a few states define the minimum age that an adolescent may be deemed a mature minor, although adolescent brain development research demonstrates that by the age of 14 most adolescents would be likely to have achieved maturity in cognitive skills and decision-making capacity.19–21 The doctrine heavily relies on the provider’s clinical judgment to determine whether a minor qualifies as a mature minor, thereby allowing them to provide informed consent. In addition to the age of the minor, the provider must consider a number of factors including their cognitive development, emotional development, ability to understand the medical treatment, and ability to provide informed consent. The provider must also assess if the minor is able to manage practical issues such as accessing transportation and paying for medical services. In circumstances where the clinician ascertains that the adolescent does not qualify as a mature minor, then the minor cannot be allowed to provide their own consent. The clinician must document their reasoning in the medical chart, and if appropriate, the minor should be encouraged to include their parents or legal guardians in the medical treatment decision.

Pregnant Minors and Minors Who Are Parents

Most states permit pregnant teens to consent to their own health care related to prenatal care, including consent to place their child for adoption. Slightly more than half of the states (30 states and DC) have statutes that permit minors to consent to medical treatment for their child, which may also include the male parent.14,16 By sharp contrast, some of these same states do not have statutes that permit the parenting minor to consent to their own health care. However, even without an explicit law, a parent of a child, even if a minor, has a constitutional right to consent to medical care for their child.

Adults Who Can Consent on Behalf of a Minor

When a minor cannot consent to medical care, the minor can still obtain services with the consent of a parent or a legal guardian.

TYPES OF HEALTH CARE THAT MINORS CAN RECEIVE WITHOUT PARENTAL CONSENT

As stated previously, adolescents are more much likely to seek health care and be consistent with medical follow-up, if they can provide their own consent for treatment and if they can be assured that their health information can be kept confidential. All states allow a minor to consent for health care related to the diagnosis and treatment of sexually transmitted infections (STIs), and most state laws allow a minor to consent for other sensitive or confidential health care services, such as contraceptive services, substance use, and mental health.12 However, again there is interstate variability of what type of health care services minors can consent to and at what minimum age, if any. Information regarding individual state laws concerning specific services is available through the Guttmacher Institute. It is imperative that health care providers verify the laws regarding specific services in the state, in which they practice.

Sexually Transmitted Infections

All states and the District of Columbia have provisions that allow minors to consent for diagnosis, treatment, and prevention of STIs. Most states do not have an age limit for minors to access services, however, 11 states set a minimum age requirement of 12 or 14 years old to consent to services. The majority of states include human immunodeficiency virus (HIV) testing in the bundle of STI services, however, much fewer states explicitly allow minors to consent to HIV prophylaxis or treatment. Eighteen states permit providers to inform parents that their adolescent is accessing STI services. With the exception of one state (Iowa) that requires parental notification in the case of a positive HIV test, no other state explicitly requires providers to notify parents when their minor adolescents access services. In some states, minors are allowed to consent to certain types of vaccines, when related to the prevention of STIs such as human papillomavirus, Hepatitis B, and monkeypox.22 For state-specific information, please refer to the Guttmacher Institute and CDC websites.10,12

Emergency Care

All states permit health care clinicians to provide emergency medical treatments to any person, including minors, without consent if attempting to get consent would put the patient’s life or health at risk by delaying treatment initiation.23 In cases where emergency treatment is needed and the parents or legal guardians cannot be reached in a timely manner, the treatment should be initiated while there is a continued effort to notify the parents or legal guardians.

Contraception

The federal constitutional right to privacy is the principle that affords the rights of adults to receive confidential contraceptive services. In 1977, the U.S. Supreme Court ruling in Carey v. Population Services International extended this privacy right to minors by affirming that a state cannot constitutionally place any restrictions on the advertisement, sale, and distribution of contraceptives to individuals of any age.16 This ruling recognizes that although parental involvement is desirable, minors who are sexually active may not seek reproductive health care services for fear that their parents would have to be informed.

Two federal programs, Medicaid and Title X of the Public Health Service Act, require that family planning services and supplies be provided confidentially to all eligible recipients, including minors.24 Therefore, minors who receive contraceptive services at any clinic, hospital, or medical practice that is funded by these programs, can provide their own consent. As stated, state laws dictate, which types of contraceptive services minors can access. With the exception of only 4 states that have no provisions for minors to consent to their own contraceptive care services, half the remaining states explicitly allow minors to consent to contraceptive service, whereas the other half of states permit minors to consent under specific circumstances such as being married or deemed as mature minors. Although no state explicitly requires parental consent or notification for minors to obtain contraceptive services, at the time of the writing of this chapter, Texas and Utah, prohibit the use of state funds for contraceptive services for minors without parental consent.

The Affordable Care Act, which became a federal law in 2010, requires health insurance plans to cover female contraceptive methods, including counseling and related services, without out-of-pocket costs.24 Despite that, and even when parental consent is not required for contraceptive services, concerns about confidentiality may still pose a significant threat to minors and may limit their access to reproductive health services. Potential sources of threat to the provision of confidential care will be discussed later in the chapter.

Emergency Contraception

In April 2013, the FDA approved certain types of emergency contraception (EC) for sale to people over the age of 15 without a prescription. After litigation, the FDA revised this approval to include all minors of childbearing age. Despite that, many states have adopted restrictions on access to EC such as excluding EC from covered services at family planning clinics and explicitly allowing pharmacists to refuse to dispense EC or other contraceptives. The landscape of reproductive access across the country is also rapidly shifting following the recent US Supreme court decision in June 2022 to overturn Roe V Wade in Dobbs v Jackson Women’s Health decision.25

Prenatal Care, Labor, and Delivery Services

Thirty-seven states explicitly allow minors to consent for prenatal care under the mature minor doctrine, although some have statutes specifying minimum age requirements for the adolescent to be considered a mature minor. Only a few states allow parental notification without the consent of the pregnant adolescent, and generally, only when the minor’s health is at risk. In North Dakota, pregnant adolescents can consent to prenatal care but only in the first trimester; later-term pregnancy requires parental notification. Thirteen states have no explicit policy or case law allowing minors to consent to prenatal care. For complete information, please see the Guttmacher Institute website.14

Abortion

State laws governing abortion access and care are rapidly changing with the recent US Supreme Court ruling overturning Roe V Wade, which granted federal constitutional rights to abortion in the United States since 1973.26 The overturning of the ruling means that individual states can implement their own abortion regulations. Many states have enacted restrictive abortion laws banning nearly all, if not all, abortions. The restrictions on abortion may even apply in cases of a medical emergency or cases of rape, assault, incest, abuse, or neglect. At the time of writing this chapter, only 2 states (Connecticut and Maine) as well as DC explicitly allow all individuals to consent to abortion services, regardless of age. Some states have no explicit laws as to whether minors can obtain an abortion confidentially. The majority of the remaining states (36 states) have statutes that require consent or notification of at least one parent when a minor is seeking an abortion.12

Nevertheless, the U.S. Supreme Court ruled that states may not give parents absolute control over their minor’s decision to have an abortion if requiring parental involvement may harm the minor. Therefore, most states that require parental involvement also include a judicial bypass procedure that allows a minor to receive court approval for an abortion without involving their parents.16 States will typically require judges to use the mature minor doctrine to determine whether to grant a waiver of parental involvement. Before waiving the parental involvement requirement, the judge must determine whether the minor has the intellectual and emotional maturity needed to understand the risk, benefits, and consequences of obtaining an abortion and whether the abortion is in their best interest. The judicial bypass procedure adds to the time before a minor can obtain an abortion. With current limits on the timing of abortion, this may prohibit a minor from obtaining an abortion. Conversely, minors may refuse to consent to an abortion even if their parents request it.

Medication abortion using mifepristone, in combination with misoprostol, was FDA-approved in 2000 for use up to 10 weeks of gestation, although it has safely been utilized in later gestations as off-label use. In December 2021, the FDA lifted the requirement that mifepristone had to be picked up at hospitals, clinics, or medical offices, thus allowing for mifepristone to be prescribed through telehealth appointments or mailed to patients where the medication was legal. Nevertheless, since the overturn of Roe v Wade, many states have adopted provisions to restrict access to medical abortion.13 These provisions include requiring providers who administer medication abortion to be physicians or requiring the provider to be physically present when the medication is being administered, thus eliminating the possibility of using telemedicine to prescribe the medication. The current legal plight of medication abortion is centered on federal versus state authority and continues to be in flux at this time. It is critical for providers who provide abortion services to adolescents to be knowledgeable about specific state and federal laws with regard to abortion.

Sexual Assault Care

Treatment for acute cases of rape, sexual abuse, and incest is included in laws permitting emergency medical treatment. Some states have explicit laws permitting minors to consent for services related to sexual assault with a portion of states requiring parental notification. Parental notification requirements are only waived if the parents were the perpetrators of the sexual assault.23

Mental Health Counseling and Services

Approximately half of the states allow minors to consent to outpatient mental health counseling or treatment and one-third of the states allow minors to consent to inpatient treatment without parental consent or knowledge, although some stipulate a minimum age requirement. In addition, many states have provisions that permit minors to provide their own consent for mental health care for sexual or physical abuse. The majority of the states (31 states) permit parents to admit their minor adolescent to an inpatient mental health facility without the explicit consent of the minor.27

Alcohol and Substance Abuse Services

In general, state laws favor the rights of minors to access drug treatment without parental consent, and tend to do so at a younger age than for mental health treatment.27 Nearly all states allow minors to consent to services related to counseling or treatment for substance use. Most states permit, but do not require the provider to notify the minor’s parents. It is not uncommon for minors and their parents to disagree about treatment for substance abuse. Although some states have specific provisions that either defer to the minor or to the parent in cases of conflict, the majority of states fail to specify who ultimately is responsible for making the final decision. Although some adolescents may seek drug treatment voluntarily, research has demonstrated that it is a minority of adolescents who do so of their own accord.28,29 Parental pressure is more likely to be associated with accessing drug treatment resources, and ongoing parental support is more likely to improve treatment effectiveness. Providers need to be knowledgeable if their state laws allow parental notification, and determine whether indeed parental involvement would have a positive or negative impact on the treatment of the minor.

Occasionally, parents who suspect that their adolescents may be using substances may request that the provider perform a drug test on the minor without their knowledge or consent. Unless the minor lacks the decision-making capacity to provide consent or there is a strong suspicion of a substance abuse problem, it is generally advisable to obtain the consent of an adolescent before performing a drug test.30,31 Providers need to explore the parent’s concerns, educate them regarding the limitations of drug testing, and the potential harm that testing without consent from the adolescent can have on the minor’s relationship with their parents as well as their health care provider. Most adolescents tend to consent to tests once they become aware of their parent’s concerns and are engaged in the decision-making. If a patient cannot provide consent to drug testing, because they are unconscious or incapacitated, then testing can be performed as it would be necessary for emergent treatment. In 2002, the US Supreme Court ruled in Board of Education versus Earls that drug testing of student-athletes is allowable.31

Transgender-related Health Care

Minors who seek sex-affirming medical and surgical treatments need parental consent in all states where such care for minors is allowable.32 State laws govern access to sex-affirming care including medical interventions such as puberty blockers and hormone therapy, as well as sex-affirming surgery. Numerous states have implemented or considered actions aimed at restricting access to sex-affirming health care. Some have legislations that criminalize both clinicians and parents for seeking, receiving, or providing sex-affirming care. The current landscape of sex-affirming care is mired by legal battles between federal and state authorities. However, clinicians may still have a role in providing sex-affirming care by prescribing hormonal contraception to achieve menstrual suppression in eligible patients.33

Sterilization

Even though sterilization is a form of birth control, the laws governing sterilization are much stricter than those applicable to other contraceptive services. The majority of states do not permit sterilization before the age of 18, and neither federal nor state funding may be used for the sterilization of anyone under 21 years old.

Some state laws may permit parental consent for the sterilization of their child, with developmental disabilities. Explicit legal guidelines must be followed.34

Immunization

Federal law stipulates that clinicians must provide patients or their parents with an updated vaccine information statement whenever a vaccination is given, but there are no federal requirements to obtain parental consent before the administration of vaccines.35 By contrast, many states have statutes that do require parental consent.1 In these states minors may still be able to consent to the administration of the hepatitis B vaccine, the human papillomavirus vaccine, and the monkeypox vaccine as these vaccines prevent STIs and may be included in state laws that explicitly allow minors to consent for services to prevent STIs.22,35–37 Health care providers need to be familiar with the individual state laws that govern immunization where they practice.

CONFIDENTIALITY

Federal Laws and State Laws

Rich evidence-based data demonstrates that adolescents are more likely to seek timely health care for confidential medical issues if they can provide their own consent for treatment and if they can be assured that their health information can be kept confidential.7–9 Research also shows that concerns regarding a breach of confidentiality may make adolescents less likely to share sensitive health histories with the provider, seek care for treatment or follow up with medical treatments.38 By contrast, adolescents who were assured of confidentiality by their providers were more likely to access health care services and follow up with treatment plans 39,40 Supporting the adolescent’s need for confidentiality also bolsters their sense of autonomy regarding medical decision-making as they transition towards adulthood.

Whereas a minor’s ability to provide consent to medical care and services is governed by state laws, which differ from state to state, confidentiality protection is governed by both state and federal laws. Providers caring for adolescents must be knowledgeable about state and federal laws that protect the adolescent’s confidentiality but also be mindful of the exceptions to confidentiality as well as the myriad of circumstances, in which confidentiality can be compromised.

Federal privacy laws dictate the disclosure of health care information for all patients. In 1996, the Health Insurance Portability and Privacy Act issued privacy regulations, known as HIPAA Privacy Rule, which went into effect in 2002.41 The HIPAA Privacy Rule ensured confidentiality for all adults with regard to their own personal health information and allowed them to control access. Furthermore, it allowed emancipated minors who can legally consent to confidential health care, such as treatment for STI, to similarly have authority over their medical records related to that care, and to who they choose to disclose their records.42,43 Essentially, if state law permits a minor to consent to medical treatment, then federal law gives the minor the right to authorize the disclosure of health information. Therefore, parents cannot legally access their adolescent’s confidential medical records, and providers must not disclose confidential information to parents, without explicit consent from the minor. Although most states have laws that protect adolescent’s confidentiality with regard to confidential care services that they legally can consent to, they vary greatly from state to state.1 Some state laws permit or require the disclosure of the personal health information of an adolescent to a parent or guardian. Federal legislation such as Title X of the Public Health Service Act provides funding to organizations and institutions that offer family planning services and stipulate that these services must be confidential, regardless if the patient is an adult or an adolescent.

Providers need to navigate the conflicting duties to abide by state laws, respect federal privacy laws of the adolescent, and ensure the safety and well-being of adolescents in their care. For an updated state-by-state regulation, please refer to the Allan Guttmacher Institute.

EXCEPTIONS TO CONFIDENTIALITY: STATUTORY DUTY TO DISCLOSE/DUTY TO WARN

Health care providers caring for adolescents must be versed with the clinical, ethical, and legal limits of confidentiality as pertains to the health information shared by adolescent patients during their medical visit. There are situations, in which a clinician may not be able to keep health care information completely confidential, whereas in other situations, laws exist that mandate a health care provider to disclose patient information. To maintain trust in the patient-provider relationship, it is critical that health care providers disclose the limits of confidentiality to any adolescent who is seeking confidential care, as well as to adolescents and their parents or legal guardians when they are accessing general adolescent medicine health care.

Child Abuse or Neglect

Although state laws can vary, all states have mandatory reporting laws for health care providers to report actual or suspected abuse or neglect of a minor to the appropriate authorities, such as child protective services. The health care provider merely needs to have a suspicion of child abuse in order for the reporting requirement to be triggered, and the law will shield the provider from liability when the report is made in good faith. By contrast, a mandated reporter who fails to report suspicion of child abuse may be held liable.44

Some states have laws that require clinicians to report the sexual activity of an adolescent as sexual abuse based on the age of the minor and their partner, or the age difference between them, even when sexual activity may be consensual. Despite the legal duty to report, health care providers have an ethical duty to ensure the security of their adolescent patients and maintain confidentiality. It falls to the clinician to use their medical judgment to determine whether the adolescent is reporting consensual sexual activity and is, therefore, entitled to access confidential health care services, versus possible sexual abuse or coercion, which must be reported to the authorities.45

Sexually Transmitted Infection Reporting

STIs are communicable diseases that must be reported to public health departments. This mandate allows local health officials to follow up on the treatment of patients as well as sexual partner notification and treatment. State laws vary, as to which STI is reportable. It is imperative for the clinician to familiarize themselves with their individual state laws to alert the adolescent regarding a possible breach of confidentiality.3,10

Suicidal Ideations, Homicidal Ideations, and Violent Injuries

In circumstances when an adolescent is at risk for harm to themselves by reporting suicidal ideations or to others by disclosing intent to harm others, clinicians have a legal and ethical duty to disclose this information to parents or legal guardians to maintain the safety of the adolescent and protect potential victims.46 In addition, most state laws require physicians to report violent injuries such as gunshots and stab wounds to law enforcement.

SOURCES OF POTENTIAL COMPROMISE OF CONFIDENTIALITY

Medical Records

Although physical or electronic medical records (EMRs) are the property of the health care provider or institution, neither the patient nor the parents of a minor, parents nevertheless can request medical records of their minor child for the purpose of transfer of care to a new provider or to see a specialist. In many instances, this poses a significant potential breach of confidentiality, as the entire medical record may be released, without redactions of protected sensitive or confidential information. State laws govern, which sensitive information warrants confidentiality and protection in the medical record. As such, it is critical that health care providers have systems and protocols in place for differentiating protected health information from other information that does not pose privacy concerns.

Electronic Medical Record

EMRs and patient portals can improve patient care by enhancing access to medical health information, laboratory tests, direct communication with providers and pharmacists, as well as sharing of medical records between organizations. Nevertheless, it can pose a major source of a potential breach of confidentiality for adolescent patients.47 Matters became even more complicated in April 2021, when the federal Office of National Coordinator implemented the Final Rule to the 21st Century Cures Act, which prohibits providers from blocking access of patients to their Electronic Health Information. This expanded access to medical records and visit notes must be reconciled with state laws and federal HIPAA Privacy Rules, which dictate the specific adolescent health information that must be protected. The Final Rule does cite some exceptions to information blocking prohibition that can be applied to adolescents who access confidential medical health care. These include conditions when the adolescent may request privacy, when the disclosure of information can cause harm to the adolescent, or if disclosure can adversely impact the provider’s professional relationship with the adolescent.48 Society for Adolescent Health and Medicine and the North American Society for Pediatric and Adolescent Gynecology have issued guidance to assist providers and institutions utilizing EMRs to develop safeguards to ensure that confidential information is not inadvertently released without the explicit consent of the adolescent.49

Family Educational Rights and Privacy Act

The Family Educational Rights and Privacy Act allows parents to access their children’s educational records, which may include health information. This poses a potential threat to the adolescent's confidential information. Providers completing school forms for adolescents need to be mindful of Family Educational Rights and Privacy Act and, where appropriate, exclude confidential health information that is protected by HIPAA Privacy Rule.41,43

Medical Billing and Health Plans

Billing and payment for confidential medical services provided to the adolescent can be a complex process and may lead to a compromise of confidentiality.50 The sources of potential breach rely on who is financially responsible for payment, who purchased the health insurance, and who is the health insurer. To reduce medical billing fraud, most private health insurers will notify the policyholder of services rendered by sending an explanation of benefits (EOBs). For the adolescent patient, this may result in the disclosure of their sensitive information to their parents without their consent.51–53 Moreover, EOBs may also negatively impact young adults whom the Affordable Care Act has permitted to remain on their parent’s insurance up to age 26. Although some states have enacted regulations to prevent insurers from sending EOBs for confidential services, this practice is not consistent and can pose a risk to confidentiality protection for adolescents.54 In these situations, providers may need to consider other options to provide care to the adolescent such as a referral to a different organization where services can be billed confidentially or offering a reduced out-of-pocket fee for the medical services. By contrast, almost all patients who are covered by Medicaid can be assured of confidentiality as Medicaid does not issue EOBs. Likewise, adolescents who seek confidential care at Title X funded Family Planning Programs, such as Planned Parenthood, are guaranteed confidential services and billing.24 In addition, nearly half of the states run family planning programs with subsidized state health insurance through the expansion of Medicaid services, which also offer confidential medical services and payment for services.

ROLE OF THE PROVIDER WITH RESPECT TO PARENT/GUARDIAN

The decision of whether or not to involve parents when adolescents seek medical care services, for which they are entitled to confidential care, can be a complicated issue, and that is especially true when the needs and wishes of the adolescent conflict with the opinions and preferences of the parents or legal guardians.55 Providers must respect the adolescent’s autonomy and privacy and abide by state and federal laws with regard to adolescent confidentiality and mandatory parental notification. Yet, parents play a major role in their adolescent’s lives and can serve as allies in optimizing the delivery of care to adolescents. In such cases, and when appropriate, providers may encourage adolescents to confide in their parents or legal guardians. Parental involvement research has demonstrated that mandatory parental notification laws significantly impeded adolescents from seeking contraceptive care services, potentially increasing their risk for unintended pregnancy and STIs.40,56 Although many states have enacted laws that explicitly allow minor adolescents to consent to contraception and STI services, confidentiality guarantees vary considerably from state to state. There are no federal laws that ensure confidentiality for adolescents seeking care for confidential care services, and a guarantee of confidentiality and whether parental involvement is required hinges on the types of funding that the provider receives.56 Nevertheless, even though the care of the mature minor is provided without parental consent, in many situations, physicians will frequently need to work with the adolescent to involve parents in decision-making, risk reduction, and ongoing health care. For example, if the adolescent wishes to utilize health insurance that the parent has purchased, then the adolescent may need to disclose the care rendered to their parents in the event that an EOB may be mailed to the parent. Therefore, clinicians who provide care to adolescents are not only required to be cognizant of consent and confidentiality laws relevant to their state but also possess the expertise required in navigating their legal and ethical responsibility to both the adolescents as well as their parents. This skill set is particularly essential when there potentially may be medical complications associated with the treatment of the minor patient.

Providers may sometimes be in situations where the adolescent or the parent may refuse treatment for a variety of reasons. If the provider determines that treatment is necessary, the reasons for refusal must be addressed. In circumstances when immediate medical intervention is needed, and the minor and their parents refuse to provide consent, legal intervention may be necessary to prevent irreversible harm to the adolescent.

Conclusion

Meeting the health care needs of adolescents and assuring their safety and welfare can be challenging and requires providers to develop a comprehensive understanding of state and federal laws that govern consent and confidentiality of the minor as well as the legal, clinical, and ethical obligations to the adolescent and their parents or legal guardians. Successful navigation of these issues provides clinicians the framework to assist adolescents in the development of autonomy as their mature into an adult, promote the establishment of appropriate medical decision-making skills, and foster a strong provider-patient relationship, all of which can significantly reduce morbidity and mortality among adolescents.

References

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Keywords:

adolescents; consent; confidentiality; legal issues in adolescent health care

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