Share sensitive information only on official, secure websites. A physician shall not disclose confidential HIV related information to a parent or guardian of a protected individual, if in the judgment of the physician, the disclosure would not be in the best interest of the protected individual, because HIPAA does not preempt State law that imposes privacy standards that are "more stringent than" the standards imposed under HIPAA (P.L. PHL 18 prevails, because a covered entity may only disclose PHI to a parent to the extent permitted by State law. However, sexual acts not amounting to penetration are legal under certain circumstances in cases where the victim is at least 16 years of age. It is divided into four subsections. An overview of state statutory rape laws and reporting requirements. . (PHL 17). 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). The .gov means its official. No Minors may receive outpatient mental health treatment if they are 13 years of age or older without the consent of a parent or guardian. In all other cases, the report must be made to a local or state law enforcement agency. For example, research finds that: Adolescents who are sexually active at a young age are more likely to have experienced coercive sex. A covered entity may elect not to treat a person as the personal representative of an individual if: (i) The covered entity has a reasonable belief that: (A)The individual has been or may be subjected to domestic violence. The descriptions of the criminal sexual acts are based on information from states criminal or penal codes. See 45 CFR 164.502(g). Toll Free Call Center: 1-877-696-6775, Content created by Office for Civil Rights (OCR). There are three situations when the parent would not be the minor's personal representative under the Privacy Rule. 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. [or] an employee or agent of the division of probation and correctional alternatives or any local probation department . In the remaining states, the age of consent is either 17 or 18 years old (6 and 11 states, respectively). Almost three-quarters of women who had intercourse before age 14, and 60 percent who did so before age 15, reported having a forced sexual experience. Local law enforcement agencies are responsible for conducting the initial investigation in approximately one-fifth of states. For example, in South Dakota, engaging in sexual penetration with someone between 10 and 16 years of age is illegal unless the defendant is less than 3 years older than the victim. . 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. Sexual relations with someone under the Age of Consent are considered statutory rape, even (in some jurisdictions), if both partners are themselves younger than the Age of Consent. In order to help you provide appropriate and patient sensitive care, here . The scope of this permission is described in a letter to the nations health care providers. 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. . HIPAA provided that such standards shall not supersede State law that imposes more stringent standards (P.L. For example, in Texas any individual who suspects child abuse is required to notify the proper authorities. A covered entity generally must have authorization to disclose PHI for other purposes (164.508). Age Of Consent. Often, such limitations are based on the age of the victim and/or the defendant. National Clearinghouse on Child Abuse and Neglect Information (2002). 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. Understanding the different terms used in a state statute is especially important in those states where an individual may be able to legally consent to one type of sexual activity but not another. For example: Minimum age of defendant in order to prosecute. In the majority of states (34), it is 16 years of age. ." Certain Department programs are covered by these HIPAA regulations. 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). Health care providers may disclose the necessary protected health information to anyone who is in a position to prevent or lessen the threatened harm, including family, friends, caregivers, and law enforcement, without a patients permission. 31 Almost all state statutes include a provision indicating that anyone is allowed to report suspected abuse. A .gov website belongs to an official government organization in the United States. Few states allow mandated reporters to exercise discretion in deciding which cases to report. . 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. All information provided AS-IS with no warranty of accuracy. If an entity is subject to both Part 2 and HIPAA, it is responsible for complying with the more protective Part 2 rules, as well as with HIPAA. Generally, statutory rape laws define the age below which an individual is legally incapable of consenting to sexual activity. 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. 2093-At what age of a child is the parent no longer the personal representative of the child for HIPAA purposes? In Rhode Island, as noted above, the law requires reports of non-familial cases in two situations, one of which is if the mandated reporter is a physician or nurse practitioner who treats a child less than 12 years of age who is infected with a sexually transmitted disease. Before sharing sensitive information, make sure youre on a federal government site. States statutory rape offenses detail the age at which an individual can legally consent to sexual activity. (3) the minimum necessary to accomplish the research if not authorized by the subject. In other states there are fewer limits on the applicability of reporting requirements to statutory rape. A covered entity may disclose a "limited data set" to DOH for research purposes if DOH executes a "data use agreement" (164.514(e)). Other states have separate offenses specifically concerned with sexual crimes involving a minor. This section focuses on laws addressing sexual intercourse.10Table 1 summarizes, where applicable, each states: As the first column in Table 1 shows, the age of consent varies by state. copies of all . 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)). . Parent has no right to access if the covered entity has a reasonable belief that the child has been or may be subjected to domestic violence, abuse or neglect by the parent or disclosure could endanger the child and the covered entity, in the exercise of professional judgment, decides that disclosure is not in the best interest of the child (164.502(g)(5)). Age differential. HIPAA, with few exceptions, treats all health information, including mental health information, the same. Mandated reporters must notify the local child protection unit of the Department of Social Services if they suspect abuse perpetrated by: the victims parent or caretaker; a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker; or a person living in the same residence with the parent or caretaker as a spouse whether married or not. regarding that patient to any other designated physician or hospital. The reporting laws usually specify one or more agencies to which reports should be made. . As a result of these efforts, the average age of consent was raised from 12 to 18 years old. This report includes the following two sections: This report is designed to provide information useful to state and federal policymakers who are interested in how state statutes address statutory rape. Young adults almost always may consent to their own care; minors may consent sometimes, but not always. adolescents are minorsunder age 18and some are young adultsage 18 or older. 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? The Privacy Rule permits a health care provider to disclose necessary information about a patient to law enforcement, family members of the patient, or other persons, when the provider believes the patient presents a serious and imminent threat to self or others. PHL 17 prevails, because it is a provision of State law that prohibits a disclosure about an unemancipated minor to a parent, guardian, or other person acting, Applies to any "covered entity": health care provider, health plan or health care clearinghouse (unless the entity transmits no health information in electronic form in connection with a transaction covered by the HIPAA Regulations) (160.102), Applies to any "health care provider" as defined in New York law (18(2), 18(1)(b), 18(1)(c), 18(1)(d)). Alabama. States laws addressing sexual activity involving minors are usually included in the section of the criminal code devoted to sexual offenses. The primary goal of Ohios MOU is to eliminate unnecessary and redundant interviews with victims. Each U.S. state has its own general age of consent. Does not apply to psychotherapy notes (164.524(a)(1)(i), 164.501(Psychotherapy notes)). . 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. In addition, there was a strong push to make the laws gender-neutral. In the remaining 39 states, other factors come into play: age differentials, minimum age of the victim, and minimum age of the defendant. *Abigail English et al., State Minor Consent Laws: A Summary, 3rd ed. Below are . 20 The Georgia, Mississippi, Missouri, North Carolina, and Tennessee statutes include the offense of statutory rape. However, sexual contact with someone who is at least 13 years of age is legal under certain circumstances. 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. To be valid, an authorization must contain specified elements and comply with specified requirements (164.508(c)). 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. Authorization to Disclose . (2003). 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. As noted above, few states use the term statutory rape in their codes. Statutory rape laws continue to evolve in the wake of the reforms of the past 30 years. MDHHS recognizes the valuable time, effort and expertise shared by community influencers and has developed a compensation plan for their contributions. The state summaries note those cases where, within a specific crime, the severity varies depending on the age of the defendant. adolescents are minorsunder age 18and some are young adultsage 18 or older. (b) permits covered entities to share with an individuals family member, other relative, close personal friend, or any other person identified by the individual, the information directly relevant to the involvement of that person in the patients care or payment for health care. For example, research finds that: These findings raised concerns among policy makers, health care providers, and advocates alike and prompted a study of alternatives for reducing coercive sexual activity. In some states, there are only a few specific circumstances under which offenses not involving a person responsible for a child are considered reportable offenses. Nor would HIPAA require an authorization to disclose confidential HIV related information under these provisions, because such disclosures may be required by law or are for law enforcement purposes to law enforcement officials in compliance with and as limited by the relevant requirements of an administrative request. (Chapel Hill, NC: Center for Adolescent Health and the Law, 2010). The remainder of this chart is confined to "patient information" under State law. For psychotherapy notes as defined by HIPAA, PHL 18 prevails. (Texas Family Code 32.101; 32.003; and Health and Safety Code 773.008) 9 Although the federal governments jurisdiction is limited, the United States Code does include statutory rape laws. Sixteen states set age thresholds for defendants, below which individuals cannot be prosecuted for engaging in sexual intercourse with minors (see the last column in Table 1). In those states where the definition of child abuse does not explicitly refer to statutory rape, discrepancies between the legality of certain sexual activities and whether they are reportable offenses are more common. Covered entity may impose a reasonable, cost-based fee (164.524(c)(4)). In some cases, provisions addressing statutory rape are embedded in rape or sexual assault laws that typically apply to violent offenses. A health care providers duty to warn generally is derived from and defined by standards of ethical conduct and State laws and court decisions such as Tarasoff v. Regents of the University of California. 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.