Not a member? Register Here   Search

Minor Consent Laws Are Imperative for Adolescents But Accidental Breaches in Privacy Still Occur

In every state, a person below the age of consent cannot make their own decisions about health care without the permission of their parents for most medical procedures, but state and federal laws carve out exceptions for sensitive services, commonly called minor-consent laws. With these exceptions come promises of confidentiality, wrote Harriette B. Fox and Stephanie J. Lamb of Incenter Strategies, in a fact sheet, State Policies Affecting the Assurance of Confidential Care for Adolescents, published by the National Alliance to Advance Adolescent Health. The study enumerates the variations in state minor-consent laws and discusses an administrative practice that can lead to breaches in confidentiality..

As is widely understood, confidentiality of medical records is considered vital to serving adolescents because securing parental consent is difficult in some circumstances, and in other instances impossible for fear of embarrassment, disapproval, or even punishment, the authors wrote. If adolescents are sure of confidentiality, they would be more inclined to seek needed health care. For instance, data show that requiring parental consent for birth control discourages adolescents from seeking family planning services but not from having sex.

The report's analysis of state statutes shows that "27 states allow some minors the right to consent independently for general medical care." Twenty-three states permit minor consent only for adolescents who meet specific criteria, which, depending on the state, might include adolescents who are high school graduates, serving in the military, pregnant, married or legally emancipated from their parents. All states allow minor consent, typically for adolescents 12 or older, for at least one service. Minor consent for STD services is permitted in all states, although the age of consent is 14 in five states, and 16 in one. Minor consent for substance abuse treatment is authorized in the vast majority of states, but for family planning services and for outpatient mental health services, is permitted in only about half the states.

Federal law permits minors to consent to some types of family planning services without parental consent at federally funded family planning clinics when services are being reimbursed by Medicaid. 

"Importantly, however, even where parental notification is not required, the right to consent independently for services is not sufficient to guarantee confidentiality," the report noted. "Administrative and billing practices used by Medicaid and private insurers may eviscerate the confidentiality protections made possible by minor consent laws," the authors wrote. The major problem is the practice of mailing explanation of benefits (EOB) statements to publicly insured individuals or privately insured policyholders. The EOBs usually contain a description of the services, the date and the provider's identity.

Practices vary, the study found. Commercial insurers are required in almost every state to mail EOBs to the policyholder. State Medicaid programs are usually not required to do so, but the survey found that states do send them for fee-for-services recipients while managed care organizations (MCOs) usually do not. Practices in the State Children's Health Insurance Program (SCHIP) vary, depending on the type of program.

"In nearly all states, the confidentiality of Medicaid-insured adolescents would be compromised if either the MCOs in which they were enrolled or the Medicaid agencies themselves mailed EOBs home," the report said.  Breaches in confidentiality are less frequent, the survey found, for patients in MCOs, as the MCOs usually have the option not to do mailings and most do not. One state, Minnesota, forbids the mailings for sensitive services.

Medicaid-served adolescents enrolled in primary care case management systems or who are on a fee-for-service basis are more likely to have their confidentiality violated. State Medicaid agencies have discretion in whether to mail the EOBs, and the survey found that most do, and a few are required to do so by law. The most common reason offered for the practice is that it ensures that the state is in compliance with federal regulations to combat fraud. Mailing EOBs is not specifically required by the federal legislation, but the states view mailings as an inexpensive and simple way to verify services. The authors said there are other strategies that would not threaten privacy and would be more efficient.

"To maintain confidentiality protections afforded under federal and state law, the services for which minors are able to consent should need to be excluded from EOB mailings by states and participating MCOs," the authors said. Only Florida has done so.

The full report may be downloaded in pdf format from http://www.thenationalalliance.org/jan07/factsheet5.pdf.