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HIPAA and court orders and custody oh my!

HIPAA   (856 Views 17 Comments)
by T-Bird78 T-Bird78 (Member)

T-Bird78 has 6 years experience .

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Ugh. We have a pt threatening to file a HIPAA complaint against my office. Mom has custody of child and only listed mom and mom’s siblings on HIPAA form.  Child was with dad and dad called to schedule a follow up appt for child, which we did schedule. Mom was about 10 minutes late to appt and is very upset that we even allowed dad to schedule the appt, let alone allow dad to be in the room with the child without mom. Dad did bring child to appt. That’s not a HIPAA violation, right?  We can’t screeen every person who calls to schedule an appt, and scheduling in and of itself isn’t giving any information out.

Second one recently, mom has custody of child and did not put dad on HIPAA form.  Dad called to ask results of office visit and we could not, and did not, provide any information other than telling dad he is not on HIPAA form.  Dad is very mad and has been sending copies of DNA tests and court documentation that he is in fact the bio dad and has equal legal rights to child. Mom refuses to put dad on HIPAA, so we can’t really tell dad anything despite court orders, right?

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1. Custody and parental rights are two different things. The general idea is that non-custodial parents have the same rights to their child's information as non-custodial parents unless court proceedings or state law applied to the situation says otherwise. HIPAA does not give custodial parents the power to write something on a random office form with the expectation that having done so blocks the other parent's rights. *My understanding.

2.

1 hour ago, T-Bird78 said:

Mom refuses to put dad on HIPAA, so we can’t really tell dad anything despite court orders, right?

I suspect your office is very wrong about this (or at least your rationale is) and I would get the correct answer from your legal counsel PRONTO. HIPAA does not remove anyone's lawful rights!!

It sounds like your office would also do well to inform parents of your legal obligations and what this does/doesn't mean - once you get the correct answer.

I don't think you are in the right by blocking a parent whose parental rights have not been altered by the courts or limited according to the laws of your state!

These things are pretty big deal. I would talk to your OM about your concerns right away.

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This is a great example of things go wrong when employees misunderstand office procedures to be rules and laws, and when they don't understand the underlying purpose of the procedures or the underlying spirit of the law. If you are nurse, well, we have to be careful about this kind of stuff because it is not uncommon for people who know relatively little to be involved in creating policies/procedures and/or instructing others about them - including adding their own take/opinion on the related matters.

The form you are having people fill out gives people the opportunity to let you know ahead of time that you may share information with so-and-so who otherwise does not have a right to the information outside of the fact that permission is being given .

The form does not mean that if the person filling it out fails to write the name of someone who already has a legal right to the information, then that person's right is removed.

 

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T-Bird78 has 6 years experience.

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21 hours ago, JKL33 said:

This is a great example of things go wrong when employees misunderstand office procedures to be rules and laws, and when they don't understand the underlying purpose of the procedures or the underlying spirit of the law. If you are nurse, well, we have to be careful about this kind of stuff because it is not uncommon for people who know relatively little to be involved in creating policies/procedures and/or instructing others about them - including adding their own take/opinion on the related matters.

The form you are having people fill out gives people the opportunity to let you know ahead of time that you may share information with so-and-so who otherwise does not have a right to the information outside of the fact that permission is being given .

The form does not mean that if the person filling it out fails to write the name of someone who already has a legal right to the information, then that person's right is removed.

 

We’re not removing their rights to the child at all. What the HIPAA communication form does is tell us who we CAN share information with. If someone who is NOT on that communication form calls to get information from us, we can’t provide any information.  We have married couples who don’t put their spouse on the HIPAA form and have the same conversation with them.  

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I didn't say you were removing rights to the physical child. You are associating scenario #1 with HIPAA by asking if what you did (allowing dad to make an appointment and be present in the room with the child w/o mother present) is a HIPAA violation, as if HIPAA itself limits his rights to act as his child's personal representative.

I am telling you that my best understanding is that if state law doesn't prohibit the father's participation (or him having his child's information) under these circumstances and the courts have not limited his parental rights related to his child's health care or health information, then HIPAA doesn't restrict those things either; HIPAA is not there to limit anyone's rights that otherwise would not be limited. So, in case that is not clear, I don't believe you have violated HIPAA in #1.

Although apparently you have violated your own office policy, which is not a good idea.

 

50 minutes ago, T-Bird78 said:

If someone who is NOT on that communication form calls to get information from us, we can’t provide any information.  We have married couples who don’t put their spouse on the HIPAA form and have the same conversation with them.  

 

Married couples are a 100% completely different matter. Unless expressly granted, a person doesn't have a right to their spouse's health information except as otherwise permitted in special circumstances. That has nothing to do with a parent having a basic right to their child's health information (or to participate in their child's care) up to the extent that it is limited by state law or by the courts.

I will state this very clearly: Generally speaking, a parent has the right to their child's basic health information because the have the right to act as their child's personal representative which encompasses the right to be present, the right to interact with you, the right to make appointments, the right to have or view information in these various ways unless the courts or the laws of your state have specified otherwise in a given family's situation. Therefore, I don't know how you can just create an office form that effectively limits this right. By the way, you are also limiting the child's "right"/ability to have their parent act as their personal representative.

If HIPAA does allow your office to demand that a minor child's parents must be listed on your own personal office form, then I suppose it follows that the office personnel had better make it very clear that both names must be written on the form unless the state or a court order says otherwise. And then, of course, you need to follow your office policy.

Did you speak with your office manager yet?

Look, I'm no authority here. But if you can show me where anything says that you are able to limit parent's right to act as their child's personal representative on the basis of HIPAA or your office's HIPAA forms, I would love to see it. And at that point I will acknowledge being wrong and we will all have learned something. 🙂

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Rose_Queen is a BSN, MSN, RN and specializes in OR, education.

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I have to agree with JKL33 here. A parent needs to be able to parent, meaning he/she needs to have information about their child's health. Unless there are court orders prohibiting one/both parents from making these decisions or knowing this information, your office has taken things to another level and this could lead to some serious trouble if parents who are not being provided information they need decide to elevate the issue.

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Here.I.Stand has 16 years experience as a BSN, RN and specializes in SICU, trauma, neuro.

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My understanding is that unless the father has lost legal custody, neither mom nor you have the authority to withhold the information — any more than from mom if DAD happened to be the one to fill out the forms

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UrbanHealthRN has 8 years experience as a BSN, RN and specializes in Pediatric/ Community and Public Health.

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I agree with JKL33 100%. I've been working in pediatrics for about a decade, and unless a parent has had all their parental rights terminated by a judge, they have a right to their child's information. Divorces, custody battles, restraining orders, foster placement, etc. can make it all messy, but parental rights are parental rights. If it is a messy parenting situation, ask for legal documentation from the parent in question to verify that the situation is true. For example, I can remember one time a dad came in looking for certain parts of his child's health record. He did have parental rights, but he was also actively trying to hunt down his partner, who had just fled him due to DV and had a restraining order and pending court case, and in no way were we going to give him clinical notes that had info like her new address on them. But that was a specific and bizarre situation. Such is clinic life. 

In both of these cases you mention above, those dads may very well be able to sue your office for blocking their parental rights and their access to their children. Like others have said, office rules don't trump the law. Tread carefully. 

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8 hours ago, UrbanHealthRN said:

He did have parental rights, but he was also actively trying to hunt down his partner, who had just fled him due to DV and had a restraining order and pending court case, and in no way were we going to give him clinical notes that had info like her new address on them. But that was a specific and bizarre situation.

And just for the record (as I'm sure you already know), HIPAA specifically mentions this type of situation and allows covered entities to use judgment if they have a serious and legit concern.

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On 8/2/2019 at 6:10 AM, T-Bird78 said:

We’re not removing their rights to the child at all. What the HIPAA communication form does is tell us who we CAN share information with. If someone who is NOT on that communication form calls to get information from us, we can’t provide any information.  We have married couples who don’t put their spouse on the HIPAA form and have the same conversation with them.  

This is incorrect.  Married spouses is different than parents of a minor child. 

Think of it this way...what if non custodial dad brings kid for an emergency visit. Kid is a new pt. Dad fills out the hippa form and leaves custodial mother off but puts HIS parents on it. You do not have the right to say oh dad filled out the form so mom can't have any info about her child that she has custody of. 

It is a piece of paper. WHO fills it out matters. I personally think it is ridiculous for parents to expect their Dr's office to be involved in their lack of communication and know who is married still, who has custody and who does not. 

 

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Jory has 10 years experience as a MSN, APRN, CNM.

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The mother is being manipulative.  Let her file a complaint, it will go nowhere.

How did the father even get the child to bring him to the appointment?   That is the question your manager needs to ask the mother.  

It's because he has visitation rights. If he has visitation rights he has PARENTAL RIGHTS.  If he has parental rights, he can demand medical records or anything else he wants and he doesn't have to consult with the mother to do so.

She probably has primary custody but unless his legal rights have been taken away, they probably have joint LEGAL custody.  

This is how you solve this problem:  Tell the mother to bring in her divorce decree or custody agreement.  Don't go by what she says.  

This isn't even a hard problem.  

IF YOU DENY THE FATHER HIS LEGAL RIGHTS TO MEDICAL INFORMATION ON THE CHILD WHEN HE HAS THE LEGAL RIGHT TO HAVE THAT INFORMATION AND HAS PROVED HE DOES, THE PERSON WHO HAS GROUNDS TO SUE THE OFFICE IS THE FATHER.  In fact, if he has joint legal custody, you can be sued if their custody arrangements requires his notification/consent for medical treatment and you perform such treatment without his consent.

Your office manager is being very sexist if she caters to a manipulative mother.  I can't stand people like this.

Edited by Jory

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