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									                                   Can I Talk to You?:
An Overview of Minor Consent and Confidentiality
                                        Thursday, March 25, 2010
                                         3:00 – 4:30 pm (Eastern)


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                                  Birth Defects and Developmental Disabilities Prevention
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                                 Disclosure Statement
•   CDC, our planners, and our content experts wish to disclose they have no financial
    interests or other relationships with the manufacturers of commercial products,
    suppliers of commercial services, or commercial supporters with the exception of
    Abigail English and she wishes to disclose that her organization receives a grant from
    GlaxoSmithKline to support policy research on adolescent vaccination.

•   Presentations will not include any discussion of the unlabeled use of a product or a
    product under investigational use.

•   There is no commercial support for this activity.
Learning Objectives
1. Distinguish between minor consent and confidentiality

2. Describe the legal framework for minor consent and confidentiality in the delivery of
    adolescent health services.

3. Describe the impact of some public and private insurance practices on adolescents'
    confidentiality.

4. Identify additional resources for federal and state consent and confidentiality laws.
Presenters
   Abigail English, JD
   Director
   Center for Adolescent Health & the Law, Chapel Hill, NC

   Stephanie J. Limb, MA
   Financing Policy Director
   National Alliance to Advance Adolescent Health



Facilitator
   Angela Ablorh-Odjidja, MHS
   Program Manager
   National Association of County and City Health Officials (NACCHO)
        Can I Talk to You?
  Minor Consent & Confidentiality:
          An Overview

           Abigail English, JD
                Director
Center for Adolescent Health & the Law

       NACCHO & CityMatCH
      Webcast – March 25, 2010
Overview

   Legal framework for adolescent
    health care
       Laws & professional recommendations
       Consent & confidentiality
   Research on importance of
    confidentiality
   Clinical implementation issues



               Center for Adolescent Health & the Law
First Principles

   Comprehensive services
   Minors & adults
   Positive family involvement
   Lack of supportive families
   Laws & adolescent access to care




            Center for Adolescent Health & the Law
Parents and Adolescents

   Voluntary communication
       Supportive parents
       Adolescent disclosure
   Mandated communication
       Dysfunctional families
       Adolescent autonomy
   Interests of adolescents & parents
       No real conflict


                Center for Adolescent Health & the Law
The Legal Framework

   Complex patchwork
   State & federal law
   Constitution, statutes, court
    decisions
   Reproductive rights
   Family roles
       Status of minor children
       Rights & responsibilities of parents

                Center for Adolescent Health & the Law
Consent for Minors’ Health Care

   Basic rule = parental consent
    required
   Alternatives to parental consent
       Related caretakers
       Foster parents
       Court
       Social worker or probation officer
   Minor consent

                Center for Adolescent Health & the Law
History of Minor Consent Laws

   Earliest laws enacted in 1950s
   Consistent pattern of expansion
    through 1960s & 1970s
   Few changes in 1980s
   Attempts to repeal or restrict laws
    beginning mid-to-late 1990s




             Center for Adolescent Health & the Law
Consent Laws in 50 States & DC

   All states have minor consent laws
   Some laws based on minor’s status
   Some laws based on services minor
    is seeking
   A few laws allow treatment without
    consent




            Center for Adolescent Health & the Law
Consent Laws Based on Status
   Emancipated minor
   Married minor
   Minor in the armed services
   Mature minor
   Minor living apart from parents
   High school graduate
   Minor over a certain age
   Pregnant minor
   Incarcerated minor


              Center for Adolescent Health & the Law
Mature Minor Doctrine
   Developed by courts
   Included in statute in a few states
   Widely recognized even without a
    statute
   Older adolescent
   Capacity for informed consent
   Voluntary consent given
   Mainstream medical care


             Center for Adolescent Health & the Law
Consent Laws Based on Services (1)

   “Pregnancy related care”
   Minors usually may consent
       Contraceptive services
       Prenatal & maternity care
   Minors often may not consent
       Sterilization
       Abortion



                Center for Adolescent Health & the Law
Consent Laws Based on Services (2)

   STD/VD prevention, diagnosis, &
    treatment
   Reportable disease prevention, diagnosis,
    & treatment
   HIV/AIDS testing & treatment
   Drug or alcohol counseling & treatment
   Outpatient mental health services
   Diagnosis & treatment for sexual assault
   Immunization

              Center for Adolescent Health & the Law
Relationship of Consent & Confidentiality

 State & federal laws
 “Consent & confidentiality”
 Confidentiality in consent laws
 Confidentiality & disclosure
   Minor consent laws
   Other laws




            Center for Adolescent Health & the Law
Rationale for Confidentiality Protection

   Avoid negative health outcomes
       Protect health of adolescents
       Protect public health
   Research findings on implications of
    adolescents’ privacy concerns




               Center for Adolescent Health & the Law
State Confidentiality Laws
   State constitutional right of privacy
   Minor consent
   Medical confidentiality & medical
    records
   Patient access to health records
   Professional licensing
   Evidentiary privileges
   State funding programs


             Center for Adolescent Health & the Law
Federal Confidentiality Laws
   Federal constitutional right of privacy
   Federal funding programs
       Title X
       Medicaid
   Regulations for federal drug & alcohol
    programs
   HIPAA Privacy Rule
   Importance of state laws in application of
    federal laws


                   Center for Adolescent Health & the Law
HIPAA Privacy Rule –
Minors as Individuals (1)

   Minors are treated as “individuals” under
    HIPAA Privacy Rule in 3 circumstances:
       When the minor has the right to consent and
        has consented; or
       When the minor may obtain care without
        parental consent and the minor, a court, or
        someone else has consented; or
       When parents accede to confidentiality
        agreement between minor and health care
        provider



                Center for Adolescent Health & the Law
HIPAA Privacy Rule –
Minors as Individuals (2)

 Minor acting as “the individual”
  can exercise rights re
  “protected health information”
 Right of the individual
   Access to information
   Control over disclosure

   Request privacy protection



           Center for Adolescent Health & the Law
HIPAA Privacy Rule -
Disclosure to Parents

   If state or other law requires it,
    provider must disclose
   If state or other law prohibits it,
    provider may not disclose
   If state or other law permits it,
    provider has discretion to disclose
   If state or other law is silent or
    unclear, provider has discretion to
    grant or withhold access

             Center for Adolescent Health & the Law
Confidentiality Provisions in
State Minor Consent Laws

   Explicit protection of confidentiality
    in minor consent laws
   Reference to minor consent laws in
    other statutes
   Grant of discretion to physician or
    health care professional to disclose
    information



             Center for Adolescent Health & the Law
Laws Mandating Disclosure

 Parental notification/consent
  provisions
 Child abuse reporting statutes

 Disclosure requirements when
  minor is dangerous to self or
  others


         Center for Adolescent Health & the Law
Professional Organization Policies - Themes

   Rationale for supporting confidentiality
   Informing adolescents and parents about
    confidentiality protections and limits to those
    rights
   Policies supporting confidential access to specific
    health services, such as:
       Preventive health
       Testing & treatment for STDs & HIV
       Contraception, pregnancy-related services,
        abortion, & other reproductive health services
   Concerns for specific populations of adolescents
   Confidentiality in particular health care settings


                  Center for Adolescent Health & the Law
Research Findings: Privacy
Concerns

 Studies spanning several
  decades have documented
  importance of privacy concerns
  in adolescent health care
 Special thanks to Carol Ford,
  MD, an adolescent medicine
  physician and researcher at
  UNC Chapel Hill

            Center for Adolescent Health & the Law
Research Findings (1)

   Many adolescents have privacy
    concerns
   Adolescents are primarily concerned
    about disclosure to their parents of
    information related to sexual
    behaviors, substance use, and
    mental health



            Center for Adolescent Health & the Law
Research Findings (2)

   Privacy concerns can be important
    enough to influence:
       Whether adolescents seek care
       When adolescents seek care
       Where adolescents seek care
       If adolescents talk openly with
        physicians




               Center for Adolescent Health & the Law
Summary of Research (3)

   In general….
       girls more concerned about parental
        notification than boys
       white adolescents more concerned
        about parental notification than
        minority adolescents
       consistently little or no association
        between SES or insurance status and
        privacy concerns


               Center for Adolescent Health & the Law
Summary of Research (4)

   Privacy concerns likely influence
    reproductive health outcomes and
    rates of sexually transmitted
    infections
   Health outcomes are costly




            Center for Adolescent Health & the Law
Clinical Implementation Issues

   Limits of confidentiality
   Seeing the adolescent alone
   Parental involvement & adolescent
    trust
   Billing and insurance claims




            Center for Adolescent Health & the Law
Limits of confidentiality

   Professional recommendations are to
    discuss the protections and limitations
    of confidentiality (conditional
    confidentiality)
   Importance of direct discussion with
    adolescent (& parent)




             Center for Adolescent Health & the Law
Seeing the Adolescent Alone

   Standard part of clinical practice
       Longitudinal care
       Episodic care
   Experienced clinicians can provide
    care that respects teens’ desire for
    privacy, follow laws, and
    appropriately involve parents or
    other responsible adults


               Center for Adolescent Health & the Law
Billing and Insurance Claims

   Loss of confidentiality
       Billing
          Clinical services

          Laboratory services

       Health insurance claims
          EOB

          Other documentation

   No easy solution
   Work within existing system or refer to
    another site

                 Center for Adolescent Health & the Law
Conclusion
   Confidentiality protection is critical
    element of access
   Current laws & professional guidelines
    support confidential care
   Confidentiality can be consistent with
    parental involvement
   Practical issues must be addressed
   Experienced clinicians can successfully
    offer confidential care
   Current laws with strong protections are
    at risk


              Center for Adolescent Health & the Law
EOB Use in Public and Private
         Insurance
                         Stephanie Limb
                         March 25, 2010
                       NACCHO Webcast
      Can I Talk to You: An Overview of Minor Consent and
                          Confidentiality
    Minor consent does not equal
           confidentiality
• Minor consent is important
• But even where minor consent is allowed,
  not a sufficient guarantee of confidentiality
• Major problem is the practice of mailing
  home EOB statements
           What is an EOB?
• Explanation of Benefits (EOB)
• Typically list the recipient’s name, services
  provided, a description of the services,
  dates of service, and provider’s
  information
• Treasure trove of information
      Commercial Insurance
• Routinely send EOBs whenever a service
  is provided
• Sent to policy holder, not the recipient
  of the service
• Adolescent not likely to be the policy
  holder
               Medicaid
• National Alliance to Advance Adolescent
  Health surveyed state Medicaid programs
  in 2008 to ask about use of EOBs in
  FFS/PCCM programs
• 42 states responded
• 88% reported mailing home an EOB
  statement
 How are EOBs used in Medicaid?
• Unlike commercial insurance, state
  Medicaid programs not mailing EOBs
  routinely whenever a service is provided
• However, they are used in fraud detection
  efforts
           Medicaid Fraud
• States are required to “have a method to
  verify whether services reimbursed by
  Medicaid were actually furnished to
  recipients.”
• Purpose is to detect fraud
• States use an EOB to comply with this
  requirement
  EOB as Fraud Detection Tool
• Typically mailed to a small sample (400 to
  500) of recipients on a quarterly or
  monthly basis
• Sometimes called Recipient Explanation of
  Medical Benefits (REOMB) or Medical
  Service Verification letter
• List services provided and request that the
  recipient confirm receipt of the services
• Adolescents may be in the sample
     Who Receives the EOB?
• Half of the states reported sending the
  EOB directly to the service recipient – the
  adolescent
• Other half reported sending it to the parent
  or head of household
  Services Excluded from EOB
• States recognize that EOBs can violate
  confidentiality
• Most have policies to exclude at least one
  service from inclusion on the EOB
• 57% of states exclude family planning
  services
• 29% exclude STD services
• 21% exclude mental health treatment
• 14% exclude substance abuse treatment
  How do EOB Policies Align with
        Minor Consent?
• To maintain the confidentiality protections
  intended in minor consent laws, the
  services for which a minor can consent
  need to be excluded from the EOB.
• Only 1 state fully aligns its minor consent
  and EOB policies
• Typically very little consistency between
  minor consent laws and exclusion of
  particular services from EOB
  How do EOB Policies Align with
        Minor Consent?
• 11 states allow minor consent for family
  planning services and exclude the
  services from EOB
• 9 states align minor consent and EOB
  policies for STD services
• 4 states do so for mental health services
• 3 states do so for substance abuse
  treatment services
     Medicaid Managed Care
• Vast majority of states give no guidance to
  contracting MCOs on use of EOBs
• Effect is to give broad discretion to MCOs
  on whether or not to send EOBs
• Only 3 states reported requiring MCOs to
  send EOBs routinely for all covered
  services
• 12 plans reported to us that they do not
  routinely send EOBs
     Medicaid Managed Care
• 1997 BBA requires Medicaid MCOs to
  send a notification whenever a decision is
  made to deny a service authorization
  request or to authorize services in amount,
  duration, or scope that is less than
  requested
• Policy designed as a consumer protection
• In practice, may, in fact, undermine
  confidential services for adolescents
         More Information?
• Full fact sheet available at
  www.thenationalalliance.org
• Email me at slimb@thenationalalliance.org
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