hipaa age of consent by state

In most states, the responsibility for the initial investigation of reported child abuse falls to law enforcement, the state agency responsible for child protective services, or some combination of the two. However, the law also includes more specific reporting requirements for individuals who work with children in a professional capacity, including employees of a clinic or health care facility that provides reproductive services. In other states there are fewer limits on the applicability of reporting requirements to statutory rape. The MOU must delineate the roles and responsibilities of each partner and establish processes for coordinating investigations. In Zipline. Washington, D.C. 20201 Generally, yes. 27 Although the reporting requirements in many states make reference to one or more of the states statutory rape laws, California is somewhat of an exception in that the reporting requirements are included in the same section of the statutes (the penal code) as the criminal laws addressing sexual activities with minors. The term statutory rape appears throughout this paper; however few states have laws which specifically use this term. medical records . Child abuse, a reportable offense, is defined to include any sexual act that is in violation of the states criminal law, but it is limited to those acts perpetrated by the victims parent or other person responsible for the childs care. . Official websites use .gov Information on states reporting requirements is usually found in the section of the code dealing with juveniles, children and families, domestic relationships, or social services. However, sexual contact with someone who is less than 13 years of age is legal under certain circumstances. Oberman, M. (2000). National Center for Prosecution of Child Abuse (2003). PHI that is de-identified under HIPAA is no longer PHI and is no longer subject to HIPAA (164.514(a), (b), (c)). 10 There are some cases where a states laws regarding sexual intercourse are not consistent with one or more of its laws governing other types of sexual acts. Such provisions are common in states where the definition of child abuse does not include statutory rape. In the District of Columbia it is illegal to engage in sexual intercourse with someone who is under the age of consent (16) if the defendant is 4 or more years older than the victim. If the disclosure is needed to lessen a serious and imminent threat and the family member is in a position to avert or lessen the threat. "Authorized adults" also include: This trend reflects the 1977 U.S. Supreme Court ruling in Carey v. DOH could be asked to represent that the requested disclosure is the minimum necessary. In the remaining states, the age of consent is either 17 or 18 years old (6 and 11 states, respectively). "If, and to the extent, permitted or required by an applicable provision of State . Washington, D.C. 20201 The laws went largely unchanged until the end of the 19th century, when feminists sought to increase the age of consent to protect young women from potentially coercive relationships. . . Official websites use .gov Generally, a covered entity must treat a "personal representative" of a person who is the subject of PHI as though the personal representative were the person (164.502(g)). For example, in Massachusetts, the age of consent is 16. Washington State's general age of majority for health care, meaning you can get healthcare services in Washington without an authorized adult's permission, is 18. In recognition of the integral role that family and friends play in a patients health care, the HIPAA Privacy Rule allows these routine and often critical communications between health care providers and these persons. The state summaries note those cases where, within a specific crime, the severity varies depending on the age of the defendant. 37 The exact titles of these agencies vary by state. ." In the remaining states, the investigation is a cooperative effort among multiple agencies. Content created by Office for Civil Rights (OCR) adolescents are minorsunder age 18and some are young adultsage 18 or older. copies of all . As a result of these efforts, the average age of consent was raised from 12 to 18 years old. Federal government websites often end in .gov or .mil. Provider must permit visual inspection within 10 days and furnish a copy within a reasonable time if the provider has space available to permit visual inspection, or must provide a copy within 10 days if the provider does not have space available to permit visual inspection (18(2)(a), (d), (g)). For example, although most states identify coroners and medical examiners as mandated reporters, they have been omitted from the state summaries. Generally, a covered entity may not disclose PHI for research purposes without an authorization (164.508). Any minor who is 14 years of age or older, or has graduated from high school, oris married, or having been married is divorced or is pregnant may give effectiveconsent to any legally authorized medical, dental, health or mental health servicesfor himself or herself, and the consent of no other person shall be necessary. More often, a states statute will refer to a number of specific professions.29 Common professions include: physical and mental health providers, teachers, child care workers, legal professionals (e.g., judges, magistrates, attorneys, law enforcement officers), clergy members, and employees of state agencies that deal with children and families.30 In addition, some states designate any individual who provides care or treatment to children as a mandatory reporter (e.g., Alabama, Missouri, Montana). . HIPAA permits health care providers to disclose to other health providers any protected health information (PHI) contained in the medical record about an individual for treatment, case management, and coordination of care and, with few exceptions, treats mental health information the same as other health information. Physicians, physician's assistants and specialist's assistants must comply with both HIPAA and State law. (1) accounted for by the provider if not authorized by the subject; (2) consistent with the provider's Notice of Privacy Practices; and. Often law enforcement and child protective services maintain their traditional roles, and the laws focus on information sharing and maximizing the relative strengths of each agency. State v. Koome, 84 Wn.2d 901 (1975). However, Pennsylvania law permits a minor to consent to all medical, dental, and other health services, except abortion, if the minor has: (1) graduated from high school, or (2) been married, or (3) been pregnant. PHI may only be disclosed in a manner consistent with a covered entity's Notice of Privacy Practices (164.502(i)). Additional individuals eligible for inclusion in multi-disciplinary teams include: representatives from the public schools, mental and physical health practitioners, child development specialists, and victim counselors. Health Care & Health Insurance Agency Legislative Council Staff Published 12/23/2022 This issue brief provides an overview of minors' rights to deny others access to medical records under the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Colorado state law. In cases involving sexual intercourse, defendants over 16 years of age who are at least 2 years older than the victim are guilty of rape in the second degree. Unless the relevant federal or State laws or regulations are amended, the Department intends to enforce specified provisions of State law as outlined in the following charts. Local child protective services agencies are responsible for receiving reports of child abuse. HIPAA is intended to be a set of minimum federal privacy standards, so it generally is possible to comply with HIPAA and other laws, such as 42 CFR Part 2, that are more protective of individuals privacy. Although these terms may be overly simplistic, they communicate the legal role each party plays with respect to the laws discussed in the report.[6]. In New Jersey, the age of consent is 16, but individuals who are at least 13 years of age can legally engage in sexual activities if the defendant is less than 4 years older than the victim. HHS promulgated the federal standards, and they are now in Parts 160 and 164 of Title 45 of the Code of Federal Regulations (the "Privacy Rule"). States can formalize such cooperation by requiring relevant agencies to develop a memorandum of understanding (MOU) for responding to reported abuse. Usage is subject to our Terms and Privacy Policy. In instances where the purpose of Congress is not clear, only the judicial branch of government can determine whether a federal law preempts a State law under the Supremacy Clause. HIPAA prevails for health plans, health care clearinghouses and individuals who are health care providers under HIPAA but are not health care practitioners under State law. Other states have separate offenses specifically concerned with sexual crimes involving a minor. Parents may consent for minors. A licensed health care professional must be designated by the provider as a reviewing official to make a final determination (164.524(d)(4)). As Michelle Oberman discusses in Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, the theoretical underpinnings of statutory rape laws have changed dramatically since their inception. New York. The report does not include laws where the legality of the sexual acts is dependent on the relationship of the participants (e.g., incest, sex between teachers and students or doctors and patients). 16Sexual intercourse with someone who is less than 16 years of age is illegal regardless of the age of the defendant. In short, if a minor can legally consent to treatment without the consent of a parent or guardian, then HIPAA recognizes their right to privacy. However, the reporting requirements only apply to the violations of certain criminal offensesnamely, those addressing situations involving victims under 16 years of age where there is an especially large difference in the age of the two parties.27. The Commissioner of DOH shall cause to be made scientific studies and research, and in conducting such studies and research, the commissioner is authorized to collect information, and such information shall be kept confidential and shall be used solely for the purposes of medical or scientific research or the improvement of the quality of medical care through the conduction of medical audits (PHL 206(1)(j)). Complete this form. However, the covered entity may rely, if such reliance is reasonable under the circumstances, on a requested disclosure as the minimum necessary for section 206(1)(j) research if DOH represents that the information DOH is requesting is the minimum necessary to do the research (164.514(d)(3)(iii)). Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape,, Phipps, C.A. 762 (1988). In addition, there was a strong push to make the laws gender-neutral. Young adults almost always may consent to their own care; minors may consent sometimes, but not always. (2003). 22 Most statutes categorize crimes based on the severity of the act (e.g., 1st, 2nd, or 3rd degree rape). State statutes vary in the level of detail they provide. Section 164.510(b)(3) of the HIPAA Privacy Rule permits a health care provider, when a patient is not present or is unable to agree or object to a disclosure due to incapacity or emergency circumstances, to determine whether disclosing a patients information to the patients family, friends, or other persons involved in the patients care or payment for care, is in the best interests of the patient. . More often though, all of the acts will be illegal (with the same age requirements), but the severity of the punishment will differ based on the type of sexual activity. The statutes often provide a range of sentences and this ordering does not take into account the effect of any sentencing recommendations in the statutes or other documents. If a health care power of attorney is currently in effect, the named person would be the patients personal representative (The period of effectiveness may depend on the type of power of attorney: Some health care power of attorney documents are effective immediately, while others are only triggered if and when the patient lacks the capacity to make health care decisions and then cease to be effective if and when the patient regains such capacity). The individual state summaries, in Section III of the report, reference the specific offenses that constitute statutory rape. The State of NJ site may contain optional links, information, services and/or content from other websites operated by third parties that are provided as a convenience, such as Google Translate. Before sharing sensitive information, make sure youre on a federal government site. If the Departments investigation indicates that the child in question has been the victim of criminal abuse, the Department transfers the case to law enforcement so that it may initiate a criminal investigation. As noted above, most states do not have laws that specifically use the term statutory rape; only five include the offense of statutory rape.20 More often, state statutes include a variety of offenses addressing voluntary sexual activity involving minors. The District of Columbia Code mandates that all child sexual abuse investigations be conducted by a multi-disciplinary team that must include at least one representative from: law enforcement, social services, child advocacy centers, and the city and federal prosecutors offices. Few states allow mandated reporters to exercise discretion in deciding which cases to report. Under the Supremacy Clause of the U.S. Constitution, federal law preempts State law when preemption is the clear and manifest purpose of Congress. Rptr. The reporting laws usually specify one or more agencies to which reports should be made. . The exact definitions vary by state. Generally, a parent, legally appointed guardian or committee exercises rights on behalf of a child, ward or incapacitated person (. In two-thirds of the states, the statutes specify circumstances under which child abuse is a reportable offense irrespective of the defendants relationship to the victim. If the report alleges sexual abuse, the mandated reporter must also notify the Division of Public Safety and the law enforcement agency with investigative jurisdiction. Similarly, Hawaii statutes require the Department of Human Services to provide police and prosecutors with any relevant information that would aid in the investigation or prosecution of child abuse cases. State law can override HIPAA. No No Minors may seek prenatal care at any age without the consent of a parent or guardian. See 45 CFR 164.520(b). to, protected health information about an unemancipated minor to a parent, guardian, or other person acting. A lock (LockA locked padlock) or https:// means youve safely connected to the .gov website. However, the HIPAA privacy standards and state privacy standards are voluminous, vague, and subject to change, and the . For example: Minimum age of defendant in order to prosecute. A covered entity may not disclose PHI about an unemancipated minor to a parent, guardian, or other person acting in loco parentis to the extent that an applicable provision of State or other law, including applicable case law, prohibits such disclosure (164.502(g)(3)(ii)(B)). For example, New Hampshire defines felonious sexual assault as voluntary sexual penetration with someone who is at least 13 years of age and under 16 years of age, as well as acts involving the use of physical force irrespective of the age of either party. To be valid, an authorization must contain specified elements and comply with specified requirements (164.508(c)). Mandated reporters can usually make an initial report orally, via telephone.35 Approximately two-thirds of states require mandated reporters to follow their initial report with a more detailed written report.36. In enacting HIPAA, Congress clearly did not supersede State laws that impose more stringent standards with respect to the privacy of individually identifiable health information. For example, research finds that: Adolescents who are sexually active at a young age are more likely to have experienced coercive sex. Under 42 CFR Part 2 (hereafter referred to as "Part 2"), a patient can revoke consent to one or more parties named in a multi-party consent form while leaving the rest of the consent in effect. The age differential decreases in cases where the victim is less than 14 years of age (3 years), further decreasing if the victim is less than 12 years of age (2 years). Minors 14 and older may consent to any medical, dental, or mental . States laws addressing sexual activity involving minors are usually included in the section of the criminal code devoted to sexual offenses. In some cases, provisions addressing statutory rape are embedded in rape or sexual assault laws that typically apply to violent offenses. . Work on this project was funded by the Office of the Assistant Secretary for Planning and Evaluation in the U.S. Department of Health and Human Services under a contract to The Lewin Group. This section of the report summarizes states child abuse reporting requirements and the extent to which they address the issue of statutory rape. Toll Free Call Center: 1-877-696-6775. However, when these laws originated in 13th century, the primary intent was to protect the chastity of young women. Each is described below. In some states, the definition of child abuse includes all of the statutory rape offenses detailed in the criminal code (e.g., North Dakota, Ohio, and Wyoming). As of 2022, all jurisdictions have laws that explicitly allow a minor of a particular age (as defined by each state) to give informed consent to receive STD diagnosis and treatment services. The Privacy Rule distinguishes between mental health information in a mental health professionals private notes and that contained in the medical record. The Privacy Rule does not prohibit a covered entity from obtaining an individual's consent to use or disclose his or her health information and, therefore, presents no barrier to the entity's ability to comply with State law requirements. adolescents are minorsunder age 18and some are young adultsage 18 or older. . Outpatient mental health treatment: Yes, unless youth is 13 or older. Thus, the Department will continue to enforce such State laws that are within the Department's purview to enforce. Statutory rape laws continue to evolve in the wake of the reforms of the past 30 years. The following is professional misconduct for a physician, physician's assistant or a specialist's assistant: "Revealing of personally identifiable facts, data, or information obtained in a professional capacity without the prior consent of the patient, except as authorized or required by law.". In situations where the patient is given the opportunity and does not object, HIPAA allows the provider to share or discuss the patients mental health information with family members or other persons involved in the patients care or payment for care. 200 Independence Avenue, S.W. Individuals have a right to have a covered entity amend inaccurate or incomplete PHI about themselves created by a health care provider. 2023 AgeOfConsent.net. However, sexual contact with someone who is less than 16 years of age is illegal regardless of the age of the defendant. Alabama. Special Report: Can Statutory Rape Laws Be Effective In Preventing Adolescent Pregnancy?. For example, in California all sexual activity involving minors is illegal. In addition, the report indicates where the applicability of states reporting requirements is limited based on the relationship between the victim and defendant (e.g., cases where the defendant is a person responsible for the care of the victim). One task of this project was a compilation of state laws and reporting requirements. PHL 18 prevails, because a covered entity may only disclose PHI to a parent to the extent permitted by State law. [5] The modern rationale for these laws is grounded in the desire to protect minors from sexual exploitation. . In addition, the summaries do not include laws that criminalize specific sexual behavior (e.g., sodomy, bestiality) or deal primarily with prostitution, sexual exploitation,[7] or enticement. In some states, a child who is pregnant or infected with a sexually transmitted disease is sufficient to cause reasonable suspicion of abuse, thereby necessitating a report. Answer: Yes, the Privacy Rule generally allows a parent to have access to the medical records about his or her child, as his or her minor child's personal representative when such access is not inconsistent with State or other law. MDHHS recognizes the valuable time, effort and expertise shared by community influencers and has developed a compensation plan for their contributions. 28 2002 Conn. AG Lexis 33, September 30, 2002. National Clearinghouse on Child Abuse and Neglect Information (2002). The Department will enforce other State laws to the extent that the Privacy Rule does not preempt them. 2086-Does the HIPAA Privacy Rule permit a doctor to discuss a patient's health status, treatment, or payment arrangements with a person who is not married to the patient or is otherwise not recognized as a relative of the patient under applicable law? In North Carolina, the age of consent is 16. This report focuses on laws that criminalize voluntary sexual acts involving a minor that would be legal if not for the age of one or more of the participants. A covered entity may use or disclose PHI without an authorization or opportunity to agree or object to the extent that such use or disclosure is "required by law" (164.512(a), 164.501(Required by law)). Share sensitive information only on official, secure websites. However, sexual acts not amounting to penetration are legal under certain circumstances in cases where the victim is at least 16 years of age. As of June 1, 2023 State Laws and Policies Minors' Access to Contraceptive Services Background Over the past 30 years, states have expanded minors' authority to consent to health care, including care related to sexual activity. At The Lewin Group, Shauna Brodsky reviewed drafts and provided helpful comments. . However, sexual contact with someone who is less than 16 years of age is illegal regardless of the age of the defendant (in State v. Darby, 556 N.W.2d 311, 127 (SD 1996), the South Dakota Supreme Court found that these two offenses can be mutually exclusive). . 35 Some state statutes require the state agency responsible for receiving reports to maintain a toll-free hotline for the sole purpose of receiving reports. Parts 160 and 164, known collectively as HIPAA, establishes standards for the privacy and security of health information. The applicable laws are often embedded in the section of the code dealing with other sexual offenses (e.g., sexual assault, forcible rape). Also, HIPAA does not preempt State law that imposes privacy standards that are "more stringent than" the standards imposed under HIPAA (P.L. If disclosure is not pursuant to an authorization, covered entities must limit PHI disclosed for research to that which is reasonably considered to be the "minimum necessary" to accomplish the research (164.514(d)(3)(ii)). (PHL 17). HIPAA, with few exceptions, treats all health information, including mental health information, the same. General rule is that parent has access (18(2), 18(1)(g)). Eichenberger v. Stockton Pregnancy Control Medial Clinic, Inc., 249 Cal. In contrast, California law states that the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse.32 The California Court of Appeals has similarly found that mandated reporters are not required to report cases in which a minor is found to have a sexually transmitted disease.33. . two aspects of consent together are prerequisites to the treatment of minors based on their own decisions. It is important to understand how HHS grantees can meet those responsibilities within the context of their organizational missions, which may involve the provision of confidential services. Also, a physician shall not disclose confidential HIV related information to a parent or guardian of a minor who is a protected individual, if in the judgment of the physician, the disclosure would not be in the best interest of the protected individual, because State law prohibits such disclosure. So long as the patient does not object, HIPAA allows the provider to share or discuss a patients mental health information with the patients family members. . . Generally, the Privacy Rule applies uniformly to all protected health information, without regard to the type of information. 24 In South Carolina, the spousal exemption does not apply to marriages entered into by a male under 16 years of age or a female under 14 years of age. The agency responsible for receiving and investigating reports of child abuse (the Department of Human Services) must refer to the appropriate law enforcement agency all cases that would constitute child abuse if not for the fact that the act was perpetrated by someone not responsible for the care of the child. 200 Independence Avenue, S.W. Increasingly, states are emphasizing interagency collaboration in child abuse investigations. The scope of this permission is described in a letter to the nations health care providers. Below are . The Health Insurance Portability and Accountability Act of 1996 ("HIPAA") gave the federal Department of Health and Human Services ("HHS") the authority to promulgate regulations containing standards with respect to the privacy of individually identifiable health information. Sex and Americas Teenagers. All information provided AS-IS with no warranty of accuracy. States differ with respect to whether mandated reporters must notify an agencys state office or one of its local officestypically the one in the local jurisdiction in which the offense took place or the victim resides. 17 Under the offense, Debauching a minor, it is illegal to debauch or deprave morals by lewdly inducing someone less than 17 years of age to carnally know any other person. 361 (1986); People ex rel. HIPAA defers to state law to determine the age of majority and the rights of parents to act for a child in making health care decisions, and thus, the ability of the parent to act as the personal representative of the child for HIPAA purposes. 2093-At what age of a child is the parent no longer the personal representative of the child for HIPAA purposes? Community influencers will receive a monthly compensation of $75 for their active participation in meetings, focus groups, surveys and social media . Other states require that multi-disciplinary teams assume responsibility for the investigative process. Disclosures for Law Enforcement Purposes (5), Disposal of Protected Health Information (6), Judicial and Administrative Proceedings (8), Right to an Accounting of Disclosures (8), Treatment, Payment, and Health Care Operations Disclosures (30).

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