Privacy, Consent and Pediatric Mental Health: What Pediatricians Need to Know

When it comes to providing mental health services for minors, pediatricians have to navigate issues around privacy and informed consent. Balancing parental concerns, patient concerns, and an understanding of the laws that vary from state to state can prove challenging. For this post, we sat down with Burlington, VT Attorney Shireen T. Hart of Primmer Piper Eggleston & Cramer PC to get an overview of what pediatricians need to be aware of.

It's hard to talk about consent without talking about privacy

These two concepts are closely linked. For example, many times a minor, when allowed by applicable state law, will choose to provide consent for their own mental health treatment expressly because they want privacy – they want to make the decision alone, without parental or guardian involvement. However, total privacy is not always possible. If the mental health services occur at the pediatrician's office, can they be kept private from parents? What happens if the visit is billed through insurance? What about sharing treatment information between providers? These are just a few of the questions we'll explore.

What is informed consent?

Let's begin with consent. In many states, the legal age of consent is not the same thing as being legally able to consent for treatment. For example, a state's legal age of consent may be 18 years of age. But in that same state, a minor may have the ability to consent for their own mental health treatment. The state can designate what age the minor needs to be to provide this – it could be 12 or older, 14 or older, and so on. All this to say, it's important to distinguish between a state's legal age of consent and the age a minor needs to be in order to give their own consent for treatment.

Not every state allows minors to provide their own consent for treatment. According to the Department of Health and Human Services (HHS), states can require:

  • Parent consent only
  • Both parent and minor consent
  • Either parent or minor consent
  • Minor consent only

 According to the same article, 

"State laws reflect the tension between protecting the right of a minor to seek confidential treatment for substance abuse or mental health concerns, and the right of parents to protect the health and welfare of their children as their parental responsibilities." The thought behind more states giving minors the power to consent to their own mental health treatment was that "giving minors more control over their health care decisions might enhance their response to treatment."

The above sentiment was part of the decision behind the new law that went into effect at the start of the year in PCC's home state of Vermont. According to an article from New England Psychologist, as of 1/1/18, minors can consent to receive outpatient treatment from a mental health professional without the consent of a parent or legal guardian. Additionally,

David C. Rettew, M.D., testified in favor of the legislation but also questioned the initial restriction of the bill. He is associate professor of psychiatry and pediatrics; director, Child & Adolescent Psychiatry Fellowship; and director, Pediatric Psychiatry Clinic, University of Vermont College of Medicine.

Rettew said prior to the legislation, there had been a lot of concern about suicide and self-harm rates among Vermont adolescents. “I think the idea was, there may be reasons why these teens might be reluctant to bring up some of these things with their parents,” Rettew said.

“(The legislation) was designed to provide an outlet for them to get a conversation going in a safe place and to try to help provide services to people who might otherwise avoid them.”

“There could be lots of reasons why a teen might be reluctant to bring up a mental health concern,” Rettew said. “We shouldn’t just reserve it for one group of people and I think people understand that. Suicide is suicide and we want to try and prevent it in everybody.”

Does a minor's consent guarantee their privacy?

This type of legislation is where issues of consent bump up against issues of privacy. Laws that afford minors the privacy to choose a treatment option on their own without parents being informed can seem to backfire when billing gets involved. In the same article, 

Rettew said in late November that the issue of insurance and payment was a concern, and he is still trying to find out what to do in that regard at his own pediatric psychiatry clinic.

“I think one of the issues about this law is that it sounds good on paper, but operationalizing it is pretty tricky,” Rettew said. “If you come to a university clinic or private clinic, the insurance is going to be billed and that’s going to go to the parent.” He said payment may not be as big of an obstacle in cases where mental health professionals aren’t paid per visit or where a bill doesn’t come out of that appointment (for example, mental health counselors embedded in schools).

Rettew said he hoped decisions on such issues would be made proactively, before problems arise, in Vermont. He cited research that shows how consent laws regarding minors seeking treatment for drug and mental health treatment vary widely across the nation.

Some states allowed minor consent for inpatient but not outpatient; substance use treatment but not mental health; or vice versa. Some states have no specific law on the books.

In a separate article for Psychology Today, Dr. Rettew writes,

Sure it might be great to remove the legal barriers preventing a teen from getting a mental health consultation, but there are a lot of other practical considerations.  How would they get there? Who pays for it, and what happens with the bill?  For all the good intentions, it did not seem like the bill would actually be utilized in a real world setting that often...

... My guess is that the law will play out most frequently not at stand-alone clinics such as where I work, but more commonly in schools where community-based mental health professionals are often based.  My hope is that the new law will give some of our struggling youth who feel the need to hide their difficulties from parents the cover they need to take that first step in bringing these problems out into the light.  The door is about to open, and the question now is how many people will walk through.  

What happens at the pediatrician's office?

If minor consent laws are better suited for a school counseling setting, where insurance billing doesn't come into the picture, what happens when a minor seeks mental health treatment at your pediatric practice? Many pediatricians address mental health issues with patients, and a growing number of practices have mental health providers embedded as employees or independent contractors. If pediatric practices are billing insurance for mental health appointments, parents will see these visits on insurance statements. How does patient privacy hold up in these situations?

According to an article from U.S. News & World Report

In every state, at least some law exists that allows minors to seek certain types of treatment and give their own consent, says Abigail English, legal counsel at the Center for Adolescent Health & the Law in Chapel Hill, North Carolina...

... If your son was suffering from mental illness, would you rather he visit a mental health clinic without your knowledge – or just sink further into depression? English says the first scenario is preferable by far.

If a teen does get in the door to receive at least preliminary care, she says, a mental health provider might share general information with a parent. Without revealing “This is what your child told me,” a therapist could say something like, “These are common issues for young people at this age,” or “Very often they have mental health problems related to X and Y.”

When payment gets involved, consent and privacy can butt heads. The same article states,

Payment is a gray area when minors seek confidential health care, and a parent who doesn’t consent to a child’s care might not have to pay for it...

... When parents foot the medical bill, information privacy gets tricky. It’s rare that kids can afford to pay for their own health services, English says, although they might be able to afford just the insurance copay, or go to a clinic that’s either free or offers sliding scale fees. But "if parents are billed for care, then it’s not going to be confidential,” she says.

What happens when parents want more information?

Another issue for pediatricians is, what happens when a parent wants access to information about their minor child's mental health treatment? If a minor is allowed to consent to their own treatment, are they also granted confidentiality around those services? That decision is also determined by state. For example, according to Shireen Hart, the law in Vermont is silent about access to records related to outpatient treatment where the minor has consented and no other consent is needed. Therefore, a parent or guardian can still access a minor's treament records if the provider decides to grant such access using their professional judgment. In this case, per HIPAA's Privacy Rule, the provider would need the minor's permission to notify the parent. However, if the provider reasonably believes in their professional judgment, that the child has been or may be subjected to domestic violence, abuse or neglect, or may otherwise be endangered, they can choose to not share information with the parent or guardian.

In the same vein, Shireen says, 

This is where these laws get very complicated. While on paper, a minor may, under certain circumstances (in certain states) be able to consent to certain mental health treatment, the logistics for a provider can lead providers to balk at recognizing the minor's informed consent in lieu of his or her parents' consent. Before agreeing to accept the minor's informed consent, one needs to think through the issue of records, billing, and more. Such records should be in a separate silo if the intention is to protect them from disclosure to the parents. If part of the same office, then this is more manageable, as long as the records that should be withheld from the parents can be separated out if and when records are to be disclosed to parents or guardians.

Shireen reiterates the same sentiment as Dr. Rettew:

"These laws allowing minors to seek mental health treatment without parental consent are really best suited to the school setting - at least at this time, while providers are still navigating new policies and procedures about confidentiality, record keeping, disclosures to other providers, etc. The issues of payment and transportation [to and from appointments] – big barriers to minors being able to avail themselves of these laws – are virtually immaterial in the school setting."

While minors may have an easier time maintaining full confidentiality by receiving mental health counseling in a school setting, some will still look to their pediatrician's office for help. In this case, it's important to have a clear understanding of your individual state laws pertaining to consent and privacy.

A pediatric-focused EHR vendor can help

It's important to work with a pediatric-focused EHR vendor who is capable of providing options for privacy. While a mental health visit billed through insurance may become known to parents, a pediatrician or mental health provider working in the practice can utilize their vendor's privacy options to keep the details of that visit out of the parents' view. 

The subject of mental health treatment and minors can be a tricky one. Privacy, confidentiality, and consent are often rife with gray areas and they require an understanding of state-specific laws. Exercising good judgment, educating yourself on legislation, and partnering with an EHR vendor who can provide the right tools will all go far in helping you provide mental health services at your pediatric practice.

Want more on mental health and pediatrics? Read Should You Offer Mental Health Services At Your Pediatric Practice?

Editor's Note: The information provided by Shireen T. Hart, Attorney at Law, is not intended to constitute legal advice or create an attorney-client relationship. We advise that you not take, or fail to take, any action based on this information without first consulting with your own legal counsel engaged for a particular matter.

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Tags: pediatric mental health, patient advocacy, pediatric ehr