Can I Talk to You?: An Overview of Minor Consent and Confidentiality Thursday, March 25, 2010 3:00 – 4:30 pm (Eastern) Sponsored by Health Resources and Services Administration Maternal and Child Health Bureau & CDC National Center on Birth Defects and Developmental Disabilities Prevention For Continuing Medical Education for Physicians (CME): The Centers for Disease Control and Prevention is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians. The Centers for Disease Control and Prevention designates this educational activity for a maximum of 1.5 AMA PRA Category 1 Credits™. Physicians should only claim credit commensurate with the extent of their participation in the activity. Continuing Education Designated for Non-Physicians (CME): Non-physicians will receive a certificate of participation. 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Complete the evaluation/posttest and Submit. A record of your course completion and your CE certificate will be located in the Transcript and Certificate section of your record. If you have any questions or problems please contact: CDC Training and Continuing Education Online 800-41TRAIN or 404-639-1292 or Email at email@example.com 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 firstname.lastname@example.org Question and Answer Period Please submit your questions using the chat feature in the lower-left corner of your screen Thank you for your participation! Once you navigate away from this page, you will be directed to an online survey. Your responses are very important to us. Please take a few moments to tell us what you thought about the webcast. To obtain continuing education credits, visit http://www.cdc.gov/tceonline Please join us for the next installment of the E-MCH Series on Thursday, April 22, 2010. The featured topic for this presentation will be “Racism and Infant Mortality”. Thank you. You may now disconnect.
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