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Circumstances that are too complicated for the rule of thumb
Unfortunately, some circumstances are not easily resolved by applying the rule of thumb. Some
of the most common circumstances in which the rule of thumb does not lead to a clear answer
are described below. In each case, the ultimate question is who should be treated as the
minor’s personal representative for HIPAA purposes. Keep in mind that:
• A person who is a personal representative for HIPAA purposes may sign authorization
forms or obtain access to PHI, but only within the scope of his or her personal
representation.
• The general rule under HIPAA is that a parent, guardian, or PILP should be treated as a
personal representative when the parent/guardian/PILP has the legal authority to make
health care decisions on behalf of an unemancipated minor.
This is not an exhaustive list. Consult with your HIPAA privacy officer or an attorney if you have
questions about how to manage a particular situation.
1. Health care provided with parental consent, but parent agreed to confidential
relationship between minor and provider. If an unemancipated minor’s parent, guardian,
or PILP consents to the minor’s treatment, but then also assents to an agreement of
confidentiality between the health care provider and the minor, the
parent/guardian/PILP may not be treated as the minor’s personal representative with
respect to PHI pertaining to any service covered by the agreement of confidentiality.
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2. Health care provided without parental consent in urgent or emergency circumstances as
defined in G.S. 90-21.1. The child’s parent, guardian, or PILP should be treated as the
child’s personal representative in these circumstances. In the urgent or emergency
circumstances covered by this statute, the parent, guardian, or PILP is the person with
the legal authority to make health care decisions on behalf of the minor, and the statute
does not change that by permitting treatment without first obtaining parental consent.
Rather, the statute allows a physician to imply or assume parental consent in
circumstances where a delay caused by trying to obtain consent would endanger the
minor or worsen his or her condition.
3. Health care provided with consent of a person authorized to consent during parent’s
temporary absence. In this circumstance, an unemancipated minor receives health care
that the parent presumably would consent to, but the parent has delegated the
authority to consent to another adult during the parent’s temporary absence. There are
thus two people who may be treated as the minor’s personal representatives under
HIPAA: both the parent, and the adult the parent has authorized to consent to the
minor’s treatment. However, the non-parent should be treated as the personal
representative only with respect to the care to which the non-parent has consented.
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45 CFR 164.502(g). This is the HIPAA provision mentioned in footnote 2. It is an exception to HIPAA’s general rule
that a parent/guardian/PILP who has legal authority to make health care decisions for an unemancipated minor is
that minor’s personal representative.