Transcript lac.org

Legal Rights & Risks
of Adolescents
in the Age of AIDS
Have questions?
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Call the Legal Action Center
Ask for “attorney on call”
212-243-1313
(800) 223-4044
1 – 5 p.m.
2
This training is . . .
 For providers of HIV and other health care and
services for young people who are living with,
at risk or affected by HIV and AIDS.
 About the legal rights and limits on the rights
of adolescents in the age of AIDS, in regard to:
 Getting preventive and & other health care,
and
 Handling HIV & other health risks they face.
3
Three training objectives
One: Be able to describe when minors can
make their own health care decision regarding:
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HIV prevention, testing and treatment
STDs & other communicable diseases
Alcohol and drug problems
Mental health services
Reproductive health care
PART 1: WHO CAN CONSENT TO HEALTH CARE FOR
MINORS?
4
Three training objectives
 Two: Be able to summarize who may decide about
disclosing confidential health information about minors –
 When their parents are in the picture.
 When foster care, school, public health, child abuse
and neglect, and juvenile or criminal justice systems
are involved in their lives.
PART 2: CONFIDENTIALITY –
MINORS AND HEALTH CARE
5
Three training objectives
Three: Be able to –
 Describe the legal consequences of
transmitting HIV to others.
 Answer adolescent clients’ questions
about their legal rights in these areas.
Incorporated into Parts 1 & 2
6
Part 1:
Who Has the Right to Consent
to Health Care for a Minor?
7
First, need to know:
Who generally has the right
to consent to health care?
8
A.
Who generally has the right
to consent to health care?
General principles of NY health law:
 NY law generally respects individuals’ right to
autonomy in making health care decisions.
 The right to consent also means the right
to refuse health care generally, or a
particular test, treatment or health service.
9
A. Who generally has the right
to consent to health care? (cont.)
General principles of NY health law
(cont.)
 This means individuals are generally free to
do whatever they choose with their own
body, IF
 The individual is an “adult” in the eyes of
the law (18 years or older), and
 He or she has “capacity to consent.”
 See below for definitions.
10
A. Who generally has the right
to consent to health care? (cont.)
 Capacity to consent
 Means able to:
 Understand and appreciate the nature and
consequences of the proposed treatment or
diagnosis, including
 benefits and risks of the proposed treatment
 possible alternatives to the proposed
test/treatment (including not doing it)
AND
 Make an informed decision about whether to
consent – or not – to the proposed test,
procedure, or treatment.
11
What about minors?
12
B. Who has the right to consent
to health care for a minor?
 Who is a “minor”?
 A person under age 18
 Who consents to health care for a
minor?
See next slide…
13
B.
Who has the right to consent
to health care for a minor? (cont.)
 The “person authorized by law to
consent to health care” for an individual:
 person with authority under NYS law to
make health care decisions for that
individual.
AND
 person whose consent must ordinarily be
obtained before a health care provider may
give that person medical/health services.
14
B.
Who has the right to consent
to health care for a minor? (cont.)
General rule under NY law:
 PARENT MUST CONSENT.
 A minor’s PARENTS are ordinarily the
“persons authorized by law to consent to
health care” for their child until age 18.
 Therefore, PARENTAL CONSENT is usually
needed to provide medical or other health
services to a child under 18.
15
B.
Who has the right to consent
to health care for a minor? (cont.)
 Who is the “parent” whose consent is needed?
 Biological parent(s) in intact families,
where parents have legal authority to
make health care decisions for their
child,
AND/OR . . .
16
B.
Who has the right to consent
to health care for a minor? (cont.)
. . . AND/OR
 Other persons in addition to or instead of
biological parent(s), who
 stand in parents’ shoes for purpose of
making health care decisions for the child,
and
 are “authorized by law to consent to health
care” for that child.
17
B.
Who has the right to consent
to health care for a minor? (cont.)
. . “Others” who may authorize minors’ health
care (continued…)
 May be:
 Legal guardian
 “Authorized agency” (ACS or DSS)
responsible for child in foster care – in
some circumstances
 Adoptive parent(s)
18
B.
Who has the right to consent
to health care for a minor? (cont.)
. . “Others” who may authorize minors’ health
care (continued…)
 Case scenario:
 Mary is 15 years old. Her parents died of
AIDS. Mary’s aunt, Lucy, is her legal
guardian.
 Who is the person “authorized by law” to
consent to health care for Mary?
19
B.
Who has the right to consent
to health care for a minor? (cont.)
. . “Others” who may authorize minors’ health care
(continued…)
 Case scenario – answer:

Lucy— Mary’s aunt & legal guardian—is the person
“authorized by law” to consent to health care for
Mary.
 This is because Lucy has been appointed Mary’s
legal guardian (not because she’s her biological
aunt).
20
B.
Who has the right to consent
to health care for a minor? (cont.)
. . “Others” who may authorize minors’ health
care (continued…)
 Case scenario:
 William is six years old and was placed in
foster care during a child neglect
proceeding against his parents. Who is the
person “authorized by law” to consent to
health care for William?
21
B.
Who has the right to consent
to health care for a minor? (cont.)
. . “Others” who may authorize minors’ health
care (continued…)
 Case scenario – answer: it depends.
 Generally, William’s biological parents
would continue to authorize his health care.
 BUT in some circumstances, the courts
give ACS (or the local DSS) the authority to
make health care decisions for a child in
foster care.
22
B.
Who has the right to consent
to health care for a minor? (cont.)
 “Parent” used in this training means the
person(s)
 Who have legal authority to make health
care decisions for a minor, and
 Whose consent is needed for minor child to
be given medical or other health care, when
law requires parental consent.
23
B.
Who has the right to consent
to health care for a minor? (cont.)
 Since parents’ consent is usually needed to
treat a minor child, parents must ordinarily be
notified and involved in making health care
decisions for a child under 18.
 Consent of one parent is enough. The
law does not say which parent must
consent, or give priority to one or the
other.
24
B.
Who has the right to consent
to health care for a minor? (cont.)
 Note: The person who is “authorized
by law to consent to health care” for an
individual is also often – but not always
– the person authorized to consent, or
not, to disclosures of confidential health
information about that individual.
 See Part Two, on Confidentiality.
25
B.
Who has the right to consent
to health care for a minor? (cont.)
The flip side of NY’s general rule:
 MINORS GENERALLY MAY NOT CONSENT TO
HEALTH CARE ON THEIR OWN.
 Minors are NOT generally authorized by law
to consent to health care for themselves.
 Children under age 18 do NOT ordinarily
have the legal authority – or right – to
make health care decisions on their own.
BUT . . .
26
B.
Who has the right to consent
to health care for a minor? (cont.)
The flip side of NY’s general rule
(cont.):
 BUT SOME MINORS MAY CONSENT TO
HEALTH CARE FOR THEMSELVES – WITHOUT
PARENTAL INVOLVEMENT OR CONSENT.
 When does that happen? See next slide…
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C. When may minors consent
to own health care?
When may a minor consent on his/her
own?
 One: NY law gives some individuals under 18
legal status as “adults” for purpose of making
health care decisions for themselves.
 Two: NY law (and Constitutional privacy
protections) allow minors to make reproductive
health care decisions – not dependent on age.
 Three: NY law gives minors authority to obtain
certain kinds of health care on their own, even
if under 18, if they have “capacity to consent.”
28
C.
When may minors consent to
own health care? (cont.)
1.
2.
3.
4.
5.
Married minors
Pregnant minors
Minor parents
Emancipated minors
Minors seeking health services for
specific health problems/conditions
6. Emergency care
29
C.
When may minors consent to
own health care? (cont.)
1. Married minors:
 May consent to all health care
 Marriage confers “adult” legal status for
purpose of making health care decisions
 Law assumes capacity to consent
30
C.
When may minors consent to
own health care? (cont.)
2. Pregnant minors:
 Have legal right to make own decision about
prenatal care – includes almost all health care
while pregnant & in labor/delivery.
 Without parental notification, involvement,
or consent.
 Pregnancy confers “adult” legal status for
purpose of making all prenatal care
decisions.
31
C.
When may minors consent to
own health care? (cont.)
2. Pregnant minors (cont.)
 Where does this right come from?
 Constitutional right to privacy
 New York law (Public Health Law § 2504(3):
“Any person who is pregnant may give effective
consent for medical, dental, health and hospital
services relating to prenatal care.”
32
C.
When may minors consent to
own health care? (cont.)
2. Pregnant minors (cont.)
 Case scenario:
 Jenny is 14 years old and pregnant and
does not want her parents to know. She
would like to get prenatal care, and aside
from that, is not feeling well herself and
needs to go to the doctor. If she makes
an appointment at the doctor, does the
doctor need to contact her parents?
33
C.
When may minors consent to
own health care? (cont.)
2. Pregnant minors (cont.)
 Case scenario – answer:
No: as a pregnant person, Jenny is
“authorized by law” to access prenatal
care. If Jenny has other health problems
(e.g., strep throat), the can also get
treated for that without parental consent
because of the potential effect on the
pregnancy.
34
C.
When may minors consent to
own health care? (cont.)
3. Had a child – minor parents:
 May consent to all their own health care
 Being parent confers “adult” legal status
for purpose of making health care
decisions
 Law assumes capacity to consent
 Parent/legal guardian may not override or
be asked for consent instead.
35
C.
When may minors consent to
own health care? (cont.)
3. Minor parents (cont.)
May consent to own health care whether:
 Married or not
 Mother or father
 Paternity is legally established
 Is the parent with physical or legal custody
of the child, or
 Child’s other parent has voluntarily given up
parental rights or had rights terminated.
36
C.
When may minors consent to
own health care? (cont.)
3. Minor parents (cont.)
May also consent to health care for
their minor children, if child lacks
capacity to consent, or is not
authorized by law to consent on own
to specific health services.
37
C.
When may minors consent to
own health care? (cont.)
3. Minor parents (cont.)
 Case scenario:
 Wanda is a 17-year old girl and has a
three-year old son. They both have the
flu.
 May Wanda consent to health care for
both her & her son?
38
C.
When may minors consent to
own health care? (cont.)
3. Minor parents (cont.)
 Case scenario – answer:
 Yes. As a parent, Wanda is the person
“authorized by law” to consent to her own
health care as well as the health care of
her children.
39
C.
When may minors consent to
own health care? (cont.)
4. Emancipated minors
Emancipation = renunciation of parental rights to a child.
Means parents can no longer make decisions for their
child.
 No clear definition for who or how to determine a
minor is emancipated
 Courts generally consider a minor emancipated if:

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

Married, or
In armed services, or
Economically independent through work, or
Parent failed to support minor and minor sought
emancipation
40
C.
When may minors consent to
own health care? (cont.)
4. Emancipated minors (cont.)
 May emancipated minors consent to own
health care?
Courts have generally said “yes.”
41
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions –
 Case scenario:
 Maria is 17. She wants to get birth control.
May she do so without notifying her
parents?
42
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions –
Yes:


NY law also gives minors the right to obtain health care for
certain sensitive conditions/problems without parental
notification or consent.
IF minor has capacity to consent, and gives informed
consent.
 Reproductive health services, STDs, HIV (limited),
alcohol & drug, and mental health treatment
43
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions –
These sensitive health conditions include:





Reproductive health services
STDs
HIV (limited)
Alcohol & drug use
Mental health conditions
44
C.
When may minors consent to
own health care? (cont.)
 What is informed consent?
 Knowing, voluntary and informed decision to
undergo a particular treatment or diagnostic
test/procedure
 After being given the information reasonably
needed to make a “knowledgeable evaluation” of
the reasonably foreseeable risks and benefits of,
and alternatives to, the proposed treatment or
diagnosis.
45
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.):
 Reproductive health services:
 May consent to –
 Birth control
 Emergency contraception
 Abortion
46
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.):
 STD testing/treatment –
 Case scenario:
What if 17-year old Maria just learned
that her boyfriend has genital herpes?
Can she go to the doctor for a test &
treatment without her parents finding
out?
47
C.
5.
When may minors consent to
own health care? (cont.)
Minors seeking health services for specific health
problems/conditions (cont.):

STD testing/treatment – case scenario answer:
Yes: Minor may consent to STD
testing/treatment without parent/guardian
consent IF:
 Can give informed consent
 Has capacity to consent
 NY Pub. Health Law § 2305(2)
48
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific health
problems/conditions (cont.):
 HIV testing
 Case scenario:
 Daphne is 15 years old. She found out that a
friend of hers got HIV after having unprotected
sex with Daphne’s ex-boyfriend. Daphne is
really scared she might have HIV. Can she get
an HIV test without her parent’s knowledge or
consent?
49
C. When may minors consent
to own health care? (cont.)
5. Minors seeking health services for specific health
problems/conditions (cont.):
 HIV testing – Case scenario – answer:
 Yes – if she has “capacity to consent.”
 NY law generally prohibits HIV testing without
informed consent.
 Informed consent can be provided by:
 Patient – including minor, if has “capacity to
consent.” (See next slide)
50
C. When may minors consent
to own health care? (cont.)
5. Minors seeking health services for specific health
problems/conditions (cont.):
 HIV testing (cont.)
 Recall: “Capacity to consent” means able to:
 Understand/appreciate the nature &
consequences of the proposed treatment or
diagnosis, including risks, benefits &
alternatives, and
 Make an informed decision.
51
C. When may minors consent
to own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.):
 HIV testing (cont.)
 Only if minor lacks capacity to consent:
 Parent/guardian may consent.
 See NYS Pub. Health Law, Art. 27-F
52
C. When may minors consent
to own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.)
 HIV testing (cont.) -But HIV testing is permitted without consent in some
circumstances:
 Newborns
 Accused or convicted sex offenders, upon victim’s
request, if ordered by court
 Lawsuit where blood of one party is at issue, if
ordered by court
53
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.)
 HIV treatment – Case scenario:
 Daphne tested positive for HIV. May
the doctor provide her with HIV
treatment without her parents’
consent?
54
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for
specific health problems/conditions

(cont.)
HIV treatment – case scenario answer:
 Law does not clearly give minors the
right to consent to own HIV treatment
(unless minor has status of an adult,
e.g., married, pregnant, a parent)
But . . .
55
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for
specific health problems/conditions
(cont.) –

HIV treatment – case scenario answer:
But some practitioners will provide HIV treatment to
a minor without parental notification or consent if
the provider determines that:
 Minor is emancipated, or
 there is an “emergency” as per NY Pub. Health
Law § 2504(4) (discussed below)
56
When may minors consent to
own health care? (cont.)
C.
5.
Minors seeking health services for specific health
problems/conditions (cont.) –

Mental health counseling & services:
 Case scenario:
 Daphne is really upset about her HIV diagnosis
and is starting to get bad grades in school.
She knows she needs mental health
counseling. Can she get it without her parents’
knowledge or consent?
57
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Mental health counseling & services:
 Depends on type of services:
 Outpatient
 Inpatient
58
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Mental health counseling & services
(cont.):
 Outpatient (including medication):
 Minor may consent if:
 Knowingly & voluntarily seeks
mental health services; and
59
C.
5.
When may minors consent to
own health care? (cont.)
Minors seeking health services for specific
health problems/conditions (cont.) –
 Outpatient (cont.):
 Parent/guardian not reasonably
available; OR
 Provider determines that parental
involvement would be detrimental to
course of treatment, OR
cont…
60
C.
5.
When may minors consent to
own health care? (cont.)
Minors seeking health services for specific
health problems/conditions (cont.) –
 Outpatient (cont.):
 Parent/guardian refused to give
consent, and physician determines that
treatment is necessary and in minor’s
best interests.
 See NYS Ment. Hyg. Law § 33.21(c)
61
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific health
problems/conditions (cont.) –
 Mental health counseling & services
(cont.):
 Inpatient (including medication):
 Minor may consent if:
 16 years or older
 Other conditions apply
 See NYS Ment. Hyg. Law § § 9.13(a) & 33.21
62
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific health
problems/conditions (cont.) –
 Alcohol & drug abuse services:
 Case scenario:
Jose is 15. He contacted a drug treatment
program because he has a drug problem and
wants help. He’s afraid his mom will beat him
if she finds out; she has abused him in the
past. His dad is in prison. Does the program
need parental consent to treat him?
63
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services:
 Case scenario – answer:
 Law encourages parental involvement,
but ...
64
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 Minor may consent to outpatient or inpatient if:

In physician’s judgment, parental/guardian
involvement & consent would harm
treatment, OR

Parent/guardian refused to consent and
physician believes treatment is in minor’s
best interests
More…
65
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 “Qualified health professional” may
make the decision if no physician on
staff
 See NYS Ment. Hyg. Law § 22.11
66
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
Similar rules for “preventive
counseling” –
 Parental consent should be sought when
possible
BUT . . .
67
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific health
problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
Similar rules for “preventive counseling” –
 BUT is not necessary if child refuses
permission to contact parents or professional
believes contact with parent would not be
helpful or would be harmful to child.

See 14 NYCRR Part 305
68
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 Case scenario:
Frank is 16. He made an appointment at an
alcoholism program and signed a release form for
the program to contact his parents so they could
authorize his treatment. The program left four
messages, but Frank’s parents did not return their
call. Frank says his parents are high a lot and pretty
much let him do whatever he wants. May the
program treat Frank?
69
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 Case scenario – answer:
 Minor may also consent to outpatient or
inpatient if:


Provider cannot locate parents/guardian
after taking “reasonable measures” to do
so, OR
If parent/guardian refuses or fails to
communicate with provider, and
More…
70
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 Case scenario – answer:



Program director authorizes the treatment
Must document reasons & efforts to locate
parent/guardian.
See NYS Ment. Hyg. Law § 22.11
71
C.
When may minors consent to
own health care? (cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 When admitting minors to inpatient or residential
treatment without parent/guardian consent:
 Minor must sign form stating –
 Voluntarily seeking treatment and
 Has been advised of availability of legal counsel.

See NYS Ment. Hyg. Law § 22.11(d)
72
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 Case scenario: Would it be different
if Frank had fathered a child?
73
C. When may minors consent to
own health care?
(cont.)
5. Minors seeking health services for specific
health problems/conditions (cont.) –
 Alcohol & drug abuse services (cont.):
 Yes. As a parent, he has the rights of
an adult to make his own health care
decisions.
74
C.
When may minors consent to
own health care? (cont.)
6. Emergency care
 Minor may receive medical, dental, health &
hospital services without parental consent if:
 “emergency” exists, person is in immediate
need of medical attention and an attempt to
get consent would delay treatment and
increase risk to patient’s life or health
 NY Pub. Health Law § 2504(4)
75
C.
When may minors consent to
own health care? (cont.)
BUT even if a minor can authorize own
health care without parental consent,
who will pay?
 Some providers have special funds to treat
minors who are not involving their parents
in their health care decision-making;
 If private insurance or Medicaid, parents
might find out if receive – and read –
“explanation of benefits” statement.
76
Part 2:
Confidentiality –
Minors and Health care
77
Balancing interests
 Confidentiality of minors’ health
information is a difficult balancing
act.
 Parents want and often need to be
involved.
 But minors sometimes will avoid getting
help if parents are notified.
 Confidentiality laws seek to strike a
balance.
78
Relevant Laws
 What laws govern confidentiality of health
information – for minors and others?
 General health info:
 HIPAA
 NYS Pub. Health Law § 18(2)





HIV – Art. 27-F, NYS Pub. Health Law
Alcohol/drug treatment: 42 C.F.R. Part 2
Mental health: NYS Mental Hygiene Law § 33.16
STDs: NYS Pub. Health Law § 17
Reproductive care: U.S. Constitution & NYS Public
Health Law § 2504(3)
79
Relevant Laws
(cont.)
 What laws govern confidentiality of health
information – for minors and others?
 Also:
 Licensing standards for the professions
Examples:
 Social work
 Doctors
 Nurses
 Psychologists
 Alcohol/drug counselor
80
HIPAA
Generally
 Establishes a federal floor of
safeguards to protect the privacy of
medical records and other “personal
health information.”
 Applies to health information
transmitted in any form:
electronically, or oral.
81
HIPAA
Who is Covered?
“Covered Entities”:
• Health Care Providers that transmit
health information electronically in
connection with billing & related activities
(“covered transactions”)
• Health Plans, and
• Health Care Clearinghouses
82
When Federal & State Laws
Regulate the Same Subject
HIPAA pre-empts any “contrary” state
law provision except when, among other
things:
 The state law relates to privacy AND is
“more stringent” than the HIPAA provision.
83
HIPAA
More Stringent Test
 Provides greater privacy protection for
the individual who is the subject of
protected information.
84
What is NYS Pub. Health
Law § 18(2)?
 Governs patients’ and others’
(including parents’) access to medical
records in NYS.
85
What is Article 27-F of NYS Pub.
Health Law?
New York State law that governs:
• HIV testing
• HIV confidentiality
• HIV reporting
• HIV partner notification
•
Also note related provisions about HIV case reporting in
Pub. Health Law §§ 2130-2139
86
Article 27-F
Who is Covered?
ANY person who receives HIV-related
information about a protected individual:
•while providing a covered “health or social service”
ex: doctors, foster care agencies, school nurses
OR
•pursuant to a proper written consent
87
Article 27-F
Who is Covered (cont.)?
ANY governmental agencies that:
•
provide, supervise or monitor health or social services
Examples: ACS (DSS), DOCS, HRA
OR
•
obtain HIV related info pursuant to Article 27-F
88
Article 27-F
Does NOT apply to:








Protected individuals themselves
Friends, relatives
Courts
Insurers
Pharmacies
Federal agencies (military, federal prisons)
Schools (except medical staff)
Employers
89
Article 27-F
Does NOT apply to
(cont.)
:
BUT other laws may protect confidentiality.
Examples:
•
•
•
U.S. Constitutional right to privacy – applies to
government
Americans with Disabilities Act – applies to employers
Privacy Act – applies to federal government
90
Article 27-F
Who is Covered (cont.)?
Case scenario:
Amber is a 12 year old student at a NYC middle
school. Her mom told Amber’s teacher that
Amber is HIV-positive. She asked the teacher to
keep it confidential. The teacher told other
teachers, and before long, students were shouting
mean things to Amber about having HIV.
Was the teacher allowed to disclose Amber’s HIV
status?
91
Article 27-F
Who is Covered (cont.)?
Case scenario – answer:
The teacher’s disclosure did not violate Art. 27-F of
the Pub. Health Law because schools are not bound
by that law (except medical staff). Neither are
classroom teachers bound by HIPAA.
BUT public schools must uphold the right to privacy
under the U.S. Constitution.
92
What’s the Law?
The General Rule
 HIPAA: A covered entity may not “use or disclose”
protected health information which is created or
received by a covered entity AND relates to the
past, present or future physical or mental health
of an individual.
 Article 27-F: Health & social service providers AND
people who receive HIV related info pursuant to
written release may not disclose (or redisclose)
any HIV related information about a protected
individual.
93
Article 27-F
HIV Related Information Includes:
•
•
•
•
•
•
Had an HIV test
Had negative HIV test results
Has HIV infection or HIV related illness or
AIDS
Has an HIV related condition
Takes medication specific to HIV disease
Is a contact of someone with HIV
94
Article 27-F
Protected Person
• Person who has HIV
• Person who has had an HIV test
• “Contacts” (spouse, sexual partner or
needle-sharing partner)
• Doesn’t have to be your client/patient
95
New York State HIV/AIDS Confidentiality Law
THE GENERAL RULE:
A provider may not disclose any HIV-related information about any
protected individual.
Exceptions: conditions permitting disclosures
Proper
consent
Health care
providers/facilities
Internal
communications
Proper form
- specifically authorized disclosure of HIV
- name of protected individual
- name of provider
- name of recipient
- reason/purpose
- dated
- time period consent effective
- signed
HIV/AIDS
case notification
Contact
notification
Parents/
legal guardians
(very limited)
Court
order
Other:
- review/monitoring
- foster care/adoption
- third party payers
- newborns
- sex offenders
- criminal justice agencies
- child/elder abuse/neg.
- occupational exposure
96
To protected individual
 May disclose HIV-related information
to “protected individual”
 Or, if lacks capacity to consent, to
person authorized to make health care
decisions for that individual.
 What does this mean for HIV+ minors?
97
To protected individual
(cont.)
Case scenario:
Whitney is 14 years old. She was infected with HIV at
birth. Her mom died of AIDS, and she lives with her
father. Her father does not want Whitney to know her
HIV status and tells her she has treatable blood cancer.
Whitney’s doctor believes Whitney should know her HIV
status so that she can participate in her own care and
because she is becoming sexually active. But he cannot
convince her father to permit the disclosure.
May the doctor tell Whitney over her father’s objection?
98
To protected individual
(cont.)
Case scenario – answer
Legally – Yes. Health care providers may disclose HIVrelated information to the “protected
individual” if she has capacity to consent.
Whitney’s doctor does believe she has
capacity to consent, so the doctor could
legally tell Whitney that she’s HIV positive,
even over her dad’s objection.
BUT. There are other important considerations….
99
To protected individual
(cont.)
Case scenario – answer (cont.)

Disclosure to Whitney is also an implicit disclosure of her deceased
mom’s status.



Did Whitney know her mom died of AIDS? If not, this will be
additional potentially traumatizing information.
Will Whitney wonder if her dad is also infected, and maybe
even is the source of her mom’s infection?
If her father is angry about the disclosure, might he stop taking
Whitney to that health care provider?
ALL of these factors must be taken into consideration.
100
Consent for disclosure
 Voluntary & revocable at any time
 Written
 Contain specific elements required by
both HIPAA & Art. 27-F
 Form must be approved by DOH (see
DOH form)
101
Capacity to Consent
Whether the individual, regardless of age, has
the ability to:
1. Understand & appreciate the nature &
consequences of proposed disclosure
AND
2. Make an informed decision about whether
or not to permit the disclosure
102
Capacity to Consent
(cont.)
Reminder (from Part 1):


Minors can have capacity to consent. No age
cut-off.
If minor lacks capacity to consent, disclosure
can be authorized by:



Biological or adoptive parent
Guardian
“authorized agency” (ACS or DSS) – if court
granted the authority
103
Article 27-F
No Redisclosure
 Person receiving HIV related
information pursuant to consent may
not redisclose
 Person providing HIV related
information pursuant to consent must
provide notice prohibiting
redisclosure. See sample.
104
Article 27-F
Internal communications
Agency staff may share HIV related
information IF the staff members:
• Are allowed access to client records in
ordinary course of business;
• Are specifically authorized in the agency’s
written “need-to-know” protocol;
• Have a reasonable need to know or share
the information to carry out their
authorized duties
105
HIPAA:
Minimum Necessary Standard
 Must make reasonable efforts to limit
information to the “minimum
necessary” to accomplish the intended
purpose
106
Disclosures to Other
Health Care Providers
Case scenario:
Jack, a 13-year old, was diagnosed with HIV by
his primary care doctor. The doctor wants to
make Jack an appointment with a specialized
HIV clinic.
May the doctor’s office disclose Jack’s HIV
status to the HIV clinic without his consent?
Does the doctor need the consent of Jack’s
parents?
107
Disclosures to Other
Health Care Providers
(cont.)
Case scenario – answer: Yes
May disclose HIV related information to a
health care provider or health facility when
person with the information reasonably
determines that the information is necessary to
provide care to:
1.
2.
3.
The individual
His or her child OR
A contact
BUT. . . .
108
Disclosures to Other
Health Care Providers
(cont.)
Case scenario – answer: Yes
But it is always preferable to try to
obtain written informed consent.
If consent can not be obtained,
document the disclosure & why it was
necessary.
109
Disclosures to Other
Health Care Providers
(cont.)
NOTE:
 Disclosures about newborn’s HIV status is always
considered necessary (per DOH)
 Medical Society of NY resolution: exchange of HIV
information from one medical provider to another
treating/consulting medical provider is routinely
necessary for the latter’s proper evaluation and
treatment of patient. Some others disagree; need
always case by case evaluation.
110
Physicians’ Disclosures about Minors
Case scenario:
Wanda is 14. She tested positive for HIV after
having unprotected sex with a boy in school.
She does not want her mom to know because
she is believes that her mom will make her
leave home.
May her doctor disclose her HIV test results to
her mom?
111
Physicians’ Disclosures about Minors
(cont.)
Case scenario – answer: No.
Physicians may only disclose a minor’s
HIV status to parents, without consent,
if all four of the following factors weigh
in favor of notification…
112
Physicians’ Disclosures about
Minors (cont.)

Physicians may disclose HIV related information about minors to the
parent/guardian without consent, IF:
1. Medically necessary to provide appropriate care or
treatment to minor
2. Minor will not inform parent/guardian, even after
counseling.
3. Parent/guardian has authority to make decisions for
minor regarding this specific care or treatment AND
4. Disclosure NOT against minor’s best interests.
113
Physicians’ Disclosures about
Minors (cont.)

How does this apply to Wanda?
1. Is the disclosure medically necessary to provide
appropriate care or treatment to Wanda?
 Does she need HIV treatment now? If not, then
disclosure without consent is not appropriate.
 If she does need HIV treatment now, can she receive it
without parent consent? (See Part 1)
 If she needs HIV treatment and can not receive it
without parental consent, then…
114
Physicians’ Disclosures about
Minors (cont.)
 How does this apply to Wanda? (cont.)
2. Does Wanda refuse to inform her mom,
even after counseling? If so, . . .
3. Does Wanda’s mom have the authority to
make decisions for minor regarding this
specific care or treatment? AND
115
Physicians’ Disclosures about
Minors (cont.)
How does this apply to Wanda? (cont.)
4. Is the disclosure against Wanda’s best
interests?
 For Wanda, disclosure would be
against her best interests if it would
result in her being homeless.
Therefore, her doctor may not disclose
her HIV test results to her mom.
116
Article 27-F
Case Reporting
Physicians & labs who diagnose HIV are
required to report every case of HIV infection,
HIV related illness and AIDS diagnosis to DOH
Report to State DOH
State rediscloses contact info to local DOH for
contact notification
117
Article 27-F
Case Reporting
(cont.)
Physicians report to DOH:
 Known contacts
 Domestic violence risk
 Whether contacts have been notified
118
Article 27-F
Partner Notification
 ONLY physicians and special DOH
staff are permitted to notify named
partners of HIV infected individual
 NO ONE ELSE is permitted to do
partner notification (unless HIV+
person consents)
119
Article 27-F
Partner Notification
(cont.)
 Physicians may notify contact of possible
HIV exposure & infection IF:




Significant risk of infection
Counsels patient about need to notify
Does domestic violence screen
Informs patient that –
 Intends to notify & must tell DOH
 May state a preference: have DOH notify
instead of physician (but Dr. need not honor
preference)
 Source person’s name won’t be revealed
120
Article 27-F
Partner Notification(cont.)
Case scenario:
Larry is 21 years old. He recently tested
positive for HIV. During his post-test
counseling session, he told his doctor that he
recently had sex with a 15-year old girl,
Melissa.
Is the doctor required – or permitted – to
notify the following people/agencies about
Larry’s HIV test results & his relationship with
Melissa:
121
Article 27-F
Partner Notification(cont.)
Case scenario – answer:
 Melissa: no legal duty. But may notify her
that she has been exposed to HIV (but not
the name of the source) after following
protocol for optional physician-conducted
partner notification.
More on next slide…
122
Article 27-F
Partner Notification(cont.)
Case scenario – answer (cont.):

Melissa’s parents: No

If the doctor performs an HIV test on Melissa,
however, and she tests positive, then the doctor might
be able to notify her parents without her consent if all
four conditions for parent notification are met. (See
slide in “Physicians’ Disclosure about Minors.”)
More on next slide…
123
Article 27-F
Partner Notification(cont.)
Case scenario – answer
(cont.):
 DOH: yes. Required to give names of all
known “contacts,” which here, include
Melissa. DOH might conduct partner
notification.
124
Article 27-F
Partner Notification(cont.)
Case scenario – answer (cont.):

What about “statutory rape?” Did Larry commit
statutory rape? If so, should/can someone report this to
the police?

Larry did commit statutory rape, which occurs when --
 Someone 21 years or older has sexual
intercourse with someone (not spouse) less
than 17 years old, or
 Someone over 18 has sex with person, not
spouse, under age 14.
125
Article 27-F
Partner Notification
(cont.)
Case scenario – answer
(cont.):

DOH may report the “statutory rape” to the
police.

Larry’s doctor could report the statutory rape to
the police, but only without revealing:
 HIV information
 That caller is Larry’s doctor
126
Article 27-F
Partner Notification
(cont.)
Case scenario – answer (cont.):

ACS (or DSS): is this reportable child abuse?
No, because Larry isn’t legally responsible for
Melissa’s care. Might be different if:
 Larry lived in Melissa’s house and was Melissa’s
mom’s boyfriend
 Melissa’s mom knew Larry was HIV+ and was
having sex with Melissa & didn’t try to stop it
127
Art. 27-F
Child abuse reporting
 If Larry’s sex with Melissa were
reportable child abuse –
would Larry’s doctor be permitted to
report it without violating Article 27-F?
128
Art. 27-F
Child abuse reporting(cont.)
 Yes. Art. 27-F permits health & social
service providers to disclose HIV
information if it’s necessary to comply with
child neglect/abuse reporting laws.
 BUT only may disclose HIV-related info if
relevant to neglect/abuse charge.
 Here, it would be relevant.
129
Article 27-F
Foster care & adoption
 If an adolescent in foster care
tests positive for HIV, who gets
told?
 Depends on who arranged for the HIV
test & who is making the disclosure . . .
130
Article 27-F
Foster care & adoption
(cont.)
 If adolescent goes independently to a
doctor or HIV testing center (foster care
agency did not arrange it), then:
 As with adolescents not in foster care, doctor
must assess adolescent’s capacity to consent –
to HIV test and to disclosure of results.
 If adolescent does not have capacity, then the
test can not be performed without consent of
person authorized to make health care decisions
for the adolescent.
131
Article 27-F
Foster care & adoption
(cont.)
 Reminder: who has authority to
make health care decisions for
adolescents in foster care?
 Unless minor has a child, is married, or is
emancipated, authority remains with
biological parent unless court gives
authority to ACS (or local DSS).
132
Article 27-F
Foster care & adoption
(cont.)
 If adolescent goes independently (cont.)
 If adolescent has capacity, doctor
–
 may not disclose HIV test results without
adolescent’s consent unless doctor invokes
exception for disclosure to parent/guardian,
discussed above (and reiterated on next
slide).
133
Article 27-F
Foster care & adoption
(cont.)
 Reminder – Physician notification of parent about
minor:
1. Medically necessary to provide appropriate care or
treatment to minor
2. Minor will not inform parent/guardian, even after
counseling.
3. Parent/guardian has authority to make decisions for
minor regarding this specific care or treatment, AND
4. Disclosure NOT against minor’s best interests.
134
Article 27-F
Foster care & adoption
(cont.)
 What if foster care agency
arranged the HIV test?
 Doctor must disclose results to foster
care agency.
 BUT before taking the test, the
adolescent should be told that this
disclosure will occur and be given the
option to do anonymous testing instead.
135
Article 27-F
Foster care & adoption
(cont.)
 Is the foster parent entitled to know
the adolescent’s HIV status?
 Physicians have no obligation to
disclose foster child’s HIV information to
foster parent & may not do so without
consent of person authorized to make
health care decisions for the adolescent.
136
Article 27-F
Foster care & adoption
(cont.)
 Is the foster parent entitled to know
the adolescent’s HIV status? (cont.)
 Foster care agencies, however, must
disclose HIV information to foster
parents even if the adolescent has
capacity to consent and objects to the
disclosure. This is why anonymous test
option must be presented to adolescent
before taking test.
137
Article 27-F
Foster care & adoption
(cont.)
 Limits on foster parent’s
redisclosure:
 Even though foster care agency must
disclose HIV test results to foster parent,
foster parent may not redisclose unless –
 Necessary for the care, treatment or
supervision of the child.
138
Article 27-F
Foster care & adoption
(cont.)
 What about the biological
parents’ HIV status?
 Authorized agencies –
 must give prospective & current
foster/adoptive parents the medical history
(including HIV info) about biological parents
 BUT identity of bio parent may not be
disclosed without consent or court order
139
Article 27-F
Complaints & Violations




$5,000 civil fine
criminal penalty if willful
private right of action (can sue)
file complaint with DOH: (800) 962-5065
 For violation of testing provision:
 Can bring medical malpractice suit
 File complaint with DOH
140
Confidentiality:
Alcohol/Drug Treatment
(cont.)
 Case scenario:
On Monday, 14-year old Carla was admitted to inpatient
drug treatment program with her parents’ consent. On
Friday, her mom called her counselor to see how Carla
was doing.
Carla did not want her counselor to talk to her mom
about her treatment.
Was the counselor permitted to speak to Carla’s mom
over Carla’s objection?
141
Confidentiality:
Alcohol/Drug Treatment
(cont.)
 Case scenario – answer:
 No disclosures to parent without minor’s
consent.
 This is so regardless of whether –
 minor consented to own treatment OR
 parent consented to minor’s treatment.
 See 42 CFR § 2.14 & Ment. Hyg. Law § 22.11
142
Confidentiality:
Alcohol/Drug Treatment
(cont.)
 Also need parent’s consent for
disclosures if –
 Parental consent to treatment was required
under NYS law.
 Conversely, do not need parent’s consent for
disclosures if parent’s consent was not required
for treatment under NYS law.
 See 42 CFR § 2.14
143
Confidentiality:
Alcohol/Drug Treatment
(cont.)

Exception for minor applicants who lack “capacity for
rational choice”:

Alcohol/drug program may notify minor’s parent/guardian of
the minor’s application for treatment without minor’s consent
only if NYS law requires parental consent to treat this minor,
AND the program director judges that:

Minor applicant lacks capacity because of extreme youth or
physical/mental condition to make a rational decision on
whether to consent to disclosure to minor’s
parent/guardian, and

A “substantial threat” exists to life or physical well being of
the minor applicant or other person that may be reduced
by communicating with parent/guardian.

42 CFR § 2.14(d)
144
Confidentiality:
Mental Health
 Info about minor’s treatment generally cannot
be disclosed without minor patient’s consent
 But psychiatrist may reveal info to parents if
significant risk of danger
 See Mental Hyg. Law § 33.16(b)(2)
145
Confidentiality:
Mental Health (cont.)
 Parent generally can access records if parent consents to
treatment,
 But not if treating practitioner determine that access
would harm:
 Practitioner’s relationship with minor patient;
 Care/treatment of minor patient; or
 Minor’s relationship with parent.
 Minors 13 and older get notice of parent’s request to
access records. Can object.
 See NY Mental Hyg. Law § 33.16(b)(3)
146
Confidentiality: STDs
 No release of STD treatment information
about minors without minor’s consent.
 But health care providers must report
“communicable diseases” – including
chlamydia, syphilis, and gonorrhea – to
NYS-DOH & NYC-DOH.
 DOH must maintain confidentiality.
 See NYS Pub. Health Law § 17 & NYC Adm. Code
147
Confidentiality:
Reproductive Health Care
 Health care providers may not
disclose to parents information about:
 Family planning services, including
emergency contraception
 (see court precedent)
 Pregnancy: including abortion
 (see NYS Pub. Health Law § 2504(3); NYS Pub.
Health L. § 17.)
148
Who’s the
Legal Action Center?
 Anti-Discrimination & Privacy
work:
 People with criminal records,
alcohol/drug histories, and/or HIV/AIDS
 Legal services & litigation
 Advice to providers
 Trainings
 Policy advocacy & research
149
Free Legal Services
Including –
 HIV testing & confidentiality
 Discrimination based on:
 HIV status
 Alcohol/drug history
 Criminal record –
 Rap sheet review and error correction
 Certificates of Relief and Good Conduct
 Job & Housing Discrimination
150
Call on us for help!
 Legal services for people affected by HIV/AIDS
– statewide!
 Training on HIV-related legal issues for HIV
service providers – statewide!
 Hot-line and technical assistance on HIVrelated legal issues – statewide!
Legal Action Center:
212-243-1313 or 800-223-4044
151
How to get help?
 Call the Legal Action Center
 212-243-1313
 800-223-4044 (toll-free)
 Clients:
 Ask for “paralegal on call”
 Providers:
 Ask for “attorney on call”
 Monday – Friday, 1 to 5 pm
152