Increasing mental health care needs for minors present a range of legal issues for children, parents, health care providers and health care payors. While state laws typically govern who has the power to consent to or refuse treatment, overlapping—and sometimes conflicting—state and federal laws control who may provide consent to disclosure of treatment records and other protected health information. Careful consideration of these laws can help protect the rights of minors and their families and provide guidance to providers and payors, while facilitating access to care. This article illustrates some of these issues under California law.
Minors as Young as 12 Years Old May Independently Consent to Outpatient Mental Health Treatment
In California, under not just one but two medical emancipation statutes, minors 12 and older can consent to outpatient mental health treatment independently—that is, without the approval of a parent or guardian—if “in the opinion of the attending professional person, [the minor] is mature enough to participate intelligently in the outpatient services.”1 The minor’s consent to care is typically limited to mental health treatment or counseling in outpatient settings only.2 Neither statute permits minors to consent to psychosurgery, convulsive treatment or psychotropic medication.3
Under both statutes, however, a minor’s consent to treatment, provided independently of a parent or guardian, triggers a requirement for providers to assess whether the minor’s parent or guardian should be involved in the treatment plan and to document the determination in the minor’s treatment record. The statutes mandate that treatment “shall include involvement of the minor’s parent or guardian, unless the professional person who is treating or counseling the minor, after consulting with the minor, determines that the involvement would be inappropriate.”4
The Special Problem of Substance Use Disorder Treatment
According to the California Health Care Foundation, 13.4% of Californians ages 12 to 18 meet the criteria for a substance use disorder.5 Substance use disorder frequently occurs alongside other mental health conditions, and both may be treated in tandem.6 As with outpatient mental health treatment, minors 12 and older can independently provide consent to “medical care and counseling relating to the diagnosis and treatment of a drug- or alcohol-related problem.”7 Also like outpatient mental health treatment, minors may not consent to all forms of treatment without their parent/guardian. For example, minors may not independently consent to some forms of addiction treatment, such as replacement narcotic abuse treatment.8
Under Family Code 6929, providers are again mandated to make and document a determination about the involvement of the minor’s parent or guardian in the treatment plan. Parents are included in minor’s treatment plan unless “in the opinion of the professional person, it would not be appropriate to contact the minor’s parent or guardian.”9
State and Federal Privacy Regulations Regarding Minor Mental Health and Substance Use Disorder Treatment Records
Under the Health Insurance Portability and Accountability Act (HIPAA), parents and guardians are generally the personal representatives of their minor children and have access to their child’s treatment records—including mental health treatment records. But when a minor provides their own independent consent to treatment where permitted by state law, parents and guardians no longer have the right to access the minor’s records related to that specific treatment. In this scenario, HIPAA defers to state or other applicable law. Generally, in California, if the minor provides independent consent to treatment, then the minor also holds the power to withhold or disclose the records related to that treatment.10 HIPAA also provides that where state law is silent on the right of parental access, “the licensed health care provider may exercise his or her professional judgment to the extent allowed by law to grant or deny parental access to the minor’s medical information.”11
A second set of privacy rules applies to substance use disorder records. 42 C.F.R. Part 2 (known as “Part 2”) strictly prevents the disclosure of substance use disorder treatment records kept by most substance use disorder treatment providers without the consent of the patient, a court order or other limited circumstances.12 Part 2’s additional privacy rights for substance use disorder treatment records apply to minors too. In states like California, where minors may independently consent to treatment, minors alone hold the power to disclose or withhold their substance use disorder treatment records, including “any disclosure of patient identifying information to the parent or guardian of a minor patient for the purpose of obtaining financial reimbursement.”13
Part 2’s disclosure protections for minors are stricter than, and arguably in conflict with, California law in one respect. California law protects providers from liability for parental disclosure without a minor’s consent: “Notwithstanding any other law, when a parent or legal guardian has sought the medical care and counseling for a drug- or alcohol-related problem of a minor child, the physician and surgeon shall disclose medical information concerning the care to the minor’s parent or legal guardian upon the parent’s or guardian’s request, even if the minor child does not consent to disclosure, without liability for the disclosure.”14 But Part 2 contains no similar safe harbor for providers in this situation, and therefore, federal penalties under Part 2 may still apply.15
As the demand for mental health and substance use disorder treatment services for minors continues to rise—especially where they co-occur or are treated simultaneously—so too will the need for additional rulemaking to clarify conflicts between state and federal privacy rules and enforcement. Part 2 providers should be aware that the U.S. Department of Health and Human Services’ Office of Civil Rights (HHS OCR) and Substance Abuse and Mental Health Services Administration (SAMHSA) are in the process of promulgating additional rules recently authorized by Section 3221 of the CARES Act, and we expect changes to Part 2 privacy rules soon.16
1 Cal. Fam. Code § 6924(b); for a helpful comparison, see “Minor Consent for Mental Health: A Side-by-Side Comparison of California’s Two Laws,” National Center for Youth Law at http://teenhealthlaw.org/wp-content/uploads/2015/12/Minor-Consent-Mental-Health-Laws-Side-by-Side.pdf. Note that minors insured under a Medi-Cal plan may consent only under the Family Code statute, which also requires that the minor either “present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or . . . is the alleged victim of incest or child abuse.” It is not clear why minor Medi-Cal beneficiaries are required to meet this additional threshold before they may consent to care.
2 Cal. Health & Safety Code § 124260(a)(1); Cal. Fam. Code § 6924(a)(1).
3 Cal. Health & Safety Code § 124260(e); Cal. Fam. Code § 6924(f).
4 Cal. Health & Safety Code § 124260(c); Cal. Fam. Code § 6924(c).
5 California Health Care Foundation, Substance Use in California, Substance Use Disorder in the Past Year, by Drug Type and Age Group, (2022) accessible at https://www.chcf.org/publication/2022-edition-substance-use-california/.
6 California Health Care Foundation, Substance Use and Treatment, Substance Use Disorder and Mental Illness, Adults by Age Group, United States, (2019) accessible at https://www.chcf.org/publication/2022-edition-substance-use-california/#related-links-and-downloads.
7 Cal. Fam. Code § 6929(b).
8 Cal. Fam. Code § 6929(e).
9 Cal. Fam. Code § 6929(c).
10 Cal. Health & Safety Code § 123110; see also Cal. Health & Safety Code § 123115; certain exceptions apply where the professional determines that disclosure of records would have a detrimental effect on the patient’s safety or well-being.
11 U.S. Department of Health and Human Services, FAQ 227, Does the HIPAA Privacy Rule allow parents the right to see their children’s medical records? (2002) accessible at https://www.hhs.gov/hipaa/for-professionals/faq/227/can-i-access-medical-record-if-i-have-power-of-attorney/index.html.
12 Part 2 applies to providers who are “federally assisted.” Unlike HIPAA, where providers fall under the umbrella of the “covered entity,” some providers within the same health system may be “federally assisted” while others are not. Part 2 providers are considered federally assisted if they: (1) receive federal funding; (2) participate in Medicare; or (3) are registered with the DEA to dispense substances listed under the Controlled Substances Act or maintenance treatment/withdrawal management, or (4) have tax-exempt status or other benefits. 42 C.F.R. § 2.12(b).
13 42 C.F.R § 2.14.
14 Cal. Fam. Code § 6929(g).
15 42 C.F.R. § 2.3(b)(1); Rebecca Gudeman, Federal Privacy Protection for Substance Abuse Treatment Records: Protecting Adolescents, J. of the Nat’l Ctr. for Youth L., July–Sept. 2003, at 3–4, accessible at http://teenhealthlaw.org/wp-content/uploads/2015/10/03_yln_3_gudeman_substance.pdf.
16 Office of Management and Budget, Unified Agenda Docket for RIN 0945-AA16, accessible at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=0945-AA16.