July 20, 2018

A. Family Access Issues

1. General Rule

As a general rule, the parents of a minor have the right to access their child’s medical information. RSA 463:3. The exceptions to this general rule are explored below.

2. Divorced Parents

Where the minor’s parents are divorced, the parent(s) who hold legal (as opposed to physical) custody of the child may access the child’s records. Generally, the court will award both parents joint legal custody of their children. This is not universal, however. If any doubt exists about the custody status of a parent, it is appropriate to request a copy of any custody orders (before October 1, 2005) or parenting plans (after October 1, 2005) issued by the court to make sure any requested release of information is appropriate. It would make sense to explore custody issues with a parent who brings a child into the provider’s office for treatment, and note custody issues in the child’s chart to document who may appropriately access the child’s information.

3. Step-Parents

Normally, the new spouse of a divorced parent cannot access the child’s health information without the consent of a custodial parent.

4. Guardians

If a guardian has been appointed for a child under RSA 463:12, the guardian may exercise the same rights as a parent in accessing the minor’s records.

5. DCYF

If the Division for Children, Youth and Families has taken physical custody of the child away from his/her parents, then the Division has access to the child’s records. In connection with the special education decision-making process, “surrogate parents” are permitted access to all records pertaining to the child, including medical records. See RSA 186-C:14, V. A “surrogate parent” is a person appointed by the DHHS commissioner, or the court if the child has been placed into DCYF custody, to act as the child’s advocate in place of the child’s natural parents or guardian in the educational decision-making process.

6. Mature Minors

a. HIPAA

While there is no dispute that parents or guardians may access the health information of a pre-adolescent child, significant controversy has arisen over the privacy rights of adolescent children - so-called “mature minors.” The public interest in whether parents can have access to the medical records of particularly adolescent minors is evident in the comments to the March 27, 2002 proposed modifications to the HIPAA Privacy Rule. The federal Department of Health and Human Services received comments from both concerned providers who felt that the final Privacy Rule allowed them to deliver health care consistent with their ethical and legal obligations (as they perceived that the final Privacy Rule allowed adolescents to limit access to health information), but also from concerned individuals who opposed the provision because it unduly interfered with parental rights to control the health care for their children and obtain access to medical information about them.

In the face of these two views, HHS wished to clarify in the proposed modifications to the Privacy Rule that questions of access by parents would be controlled by State law, whether that be found in statutes, regulations, case law, or professional practice. See 67 F.R. 14792 (March 27, 2002). It was not the intent of the Department in drafting the Privacy Rule to create additional rights not already covered under State law (although the Department acknowledged that not all States have addressed the issues related to treatment of particularly adolescents, or access to records even where a minor’s right to seek medical care was addressed).

More specifically, as initially adopted, the Privacy Rule provides under section 164.502(g)(3) as follows:

(3) Implementation specifications: unemancipated minors. If under applicable law a parent, guardian, or other person acting in loco parentis has authority to act on behalf of an individual who is an unemancipated minor in making decisions related to health care, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representative, except that such person may not be a personal representative of an unemancipated minor, and the minor has the authority to act as an individual, with respect to protected health information pertaining to a health care service, if:

(i) The minor consents to such health care service; no other consent to such health care service is required by law, regardless of whether the consent of another person has also been obtained; and the minor has not requested that such person be treated as the personal representative;

(ii) The minor may lawfully obtain such health care service without the consent of a parent, guardian, or other person acting in loco parentis, and the minor, a court, or another person authorized by law consents to such health care service; or

(iii) A parent, guardian, or other person acting in loco parentis assents to an agreement of confidentiality between a covered health care provider and the minor with respect to such health care service.  The proposed amendment to this rule was to leave subpart (g)(3)(i), but change subparts (g)(3)(ii) and (iii) to clarify its deference to State law. The final rule published in the federal register on August 14, 2002 (67 F.R. 53182) reaffirms HHS’s deferral to State law, but provides that if State or other law is silent or unclear on whether disclosure to parents is permitted, then providers should continue to utilize the same analysis they do now to determine if disclosure is permitted. States are invited to clarify their own laws on the interaction between parents and minors in regard to access issues. See 67 F.R. at 53202. The final rule modifies §164.502(g)(3)(ii) only as follows:

(ii) Notwithstanding the provisions of paragraph (g)(3)(i) of this section:
(A) If, and to the extent, permitted or required by an applicable provision of State or other law, including applicable case law, a covered entity may disclose, or provide access in accordance with §164.524 to, protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis;

(B) If, and to the extent, permitted or required by an applicable provision of State or other law, including applicable case law, a covered entity may not disclose, or provide access in accordance with §164.524 to, protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis; and (C) Where the parent, guardian, or other person acting in loco parentis, is not the personal representative under paragraphs (g)(3)(i)(A), (B), or (C) of this section and where there is no applicable access provision under State or other law, including case law, a covered entity may provide or deny access under §164.524 to a to a parent, guardian, or other person acting in loco parentis, if such action is consistent with State or other applicable law, provided that such decision must be made by a licensed health care professional, in the exercise of professional judgment.

In summary, HIPAA now provides that a parent may have access to their minor child’s records if State law permits or requires disclosure to them, but prohibits such disclosure where State law would deny the access. It acknowledges that if a child has capacity to consent to a procedure and State law does not require a parent’s consent, the child has the ability to deny the parent access to their records. Where State law is silent on whether the child has capacity to consent or the parents may access the health information, providers are instructed to use their professional judgment to determine whether a denial of parental access is consistent with State or other law. HIPAA does contain a provision permitting disclosure in the most critical cases to parents even if the child would ordinarily be able to deny access, to avert a serious and imminent threat to the health and safety of the minor. §164.512 (j).

b. New Hampshire Law.

Unfortunately, New Hampshire is one the States which has not addressed whether adolescents generally have the capacity to consent to medical care and, therefore, deny their parents access to medical records. New Hampshire does have a few statutory provisions which address a minor’s capacity to consent to a limited range of medical services, see infra, subsection E, but resort to “other law,” particularly federal constitutional law and medical ethical guidelines must be made to guide providers.

While the New Hampshire legislature has never specifically addressed the mature minor rule in a general sense, providers appear to accept the ability of adolescents to consent to routine medical care in at least the outpatient setting. The New Hampshire Supreme Court has permitted a 17 year old child to deny his parents access to his mental health records. In re Berg and Berg, 152 N.H. 658 (2005). An analysis of the facts of this case are instructive.

The boy’s father had sought the records as part of a custody battle with the boy’s mother. The father believed that he would find evidence in the records of the mother’s manipulations of the children to turn them against him. The Supreme Court was asked to look at three questions:

1. Do children have a right to privacy for their medical records and communications?

2. Does the court have the authority to seal the therapy records of the parties’ minor children when one parent demands access to the records for purposes of litigation?

3. Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records?

The father urged the Court to answer all these questions in the negative, arguing that: (1) a parent’s fundamental right to raise his or her children is paramount to the privacy rights minor children may have in their medical records; (2) minor children are not protected by the therapist-client privilege or, if they are, the privilege is conferred exclusively upon their parents; (3) the mother waived her right to object to disclosure of the records when she raised the matter of the importance of the therapists’ testimony; (4) the father’s constitutionally protected right to confront and cross-examine adverse witnesses compels disclosure of the records; and (5) federal regulations regarding the privacy of individually identifiable health information (i.e., HIPAA) prohibit denying a parent access to his or her children’s personal health information. The Court rejected the father’s arguments and answered all three questions in the affirmative.

The In re Berg and Berg, decision is also the first time the NH Supreme Court has addressed the HIPAA Privacy Rule. The Court’s HIPAA discussion is worth reading: The United States Department of Health and Human Services has promulgated rules regarding the privacy of individually identifiable health information, pursuant to the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, 110 Stat. 1936 (1996). 45 C.F.R. §§ 164.500-.534 (HIPAA Privacy Rules). The father argues in his brief that section 164.502(g) of the HIPAA Privacy Rules prohibits denying a parent access to his children’s personal health information. We disagree.

Section 164.502(a)(2) of the HIPAA Privacy Rules requires a health care provider to disclose protected health information to the health care recipient at the health care recipient’s request. In certain circumstances, the health care provider is also required to disclose such information to the personal representative of the health care recipient at the personal representative’s request. See id. § 164.502(g)(1) (requiring the health care provider to treat the personal representative of a health care recipient as the recipient for the purpose of obtaining information and records).

For an unemancipated minor, a parent, among others, must be treated as the minor’s personal representative, so long as the parent, under applicable law, has the authority to act on behalf of the minor in making decisions related to health care. Id. § 164.502(g)(3)(i). However, the health care provider may not disclose or provide access to protected health information about an unemancipated minor to a parent if doing so is "prohibited by an applicable provision of State or other law, including applicable case law." Id. § 164.502(g)(3)(ii)(B). In the context of this case, the therapist-client privilege statute prohibits the father from obtaining access to his children’s therapy records absent court order.

Furthermore, section 164.502(g) permits the health care provider to withhold information from a parent, even where the disclosure of such information is not prohibited by state law, if the health care provider, "in the exercise of professional judgment, decides that it is not in the best interest of the [health care recipient] to treat the [parent] as the [health care recipient’s] personal representative." Id. § 164.502(g)(5)(ii). Therefore, section 164.502(g) of the HIPAA Privacy Rules does not create an absolute right in the father to access his children’s therapy records.

While the New Hampshire Supreme Court acknowledged an adolescent’s right in some circumstances to deny access of medical records to parents, it has yet to address when a mature minor may consent to treatment without their parents’ involvement in the consent process. Thus, a health care provider is not obligated to treat “mature minors,” if it chooses to adopt a policy against this practice.

c. Medical/Ethical Considerations - the Mature Minor Rule

Although express statutory authority for minors to consent to certain medical procedures implies that parental consent is required for all other forms of medical treatment, this conclusion is inconsistent with the recognition that most minors who are fourteen or older have developed the cognitive ability to make health care decisions. Most experts consider children around the age of thirteen or fourteen to have developed sufficient cognitive ability to make health care decisions. Children’s Competence to Consent (Plenum Press, G. Melton, G. Koocher & M. Saks eds. 1983). Consequently, ethical guidelines of many specialty boards have concluded that it is inappropriate to entirely exclude these mature minors from health care decision-making. All consent issues (and later access issues) concerning mature minors should be evaluated taking into consideration the following three questions when care is sought outside the statutory exceptions:

• Is the minor emancipated?
• Is there a constitutional right for the minor to receive the treatment at issue?
• Do medical/ethical considerations warrant obtaining the minor’s assent to treatment?

So, should providers permit mature minors to consent to medical procedures? Must they?

According to one treatise, there are no reported cases in the last 30 years in which a parent has recovered damages from a physician for providing appropriate treatment for which the minor, but not the parent, has given consent. Health Law Manual, §19.01[4]. As indicated in the preceding subsection, the New Hampshire Supreme Court and legislature have not expressly considered whether or when mature minors may consent to medical treatment1, although the dearth of such decisions and the pervasiveness of the practice in outpatient settings of providing care based on a minor’s consent, suggests acceptance by providers of the principle.

Absent formal guidance in New Hampshire, consent of the parent should still be obtained whenever reasonably possible through counseling the child, but it may be advisable to also assess and document the minor’s maturity and ability to make the decision. If the maturity of the particular child as well as the nature of the treatment and complexity of the decision suggest the minor is capable of making an informed decision, good practice suggests that obtaining the assent of the minor even when parents are involved in the decision-making.

If a difference of opinion arises between a mature minor and his or her parent(s), which cannot be resolved, if the minor’s preference is to receive treatment, this should have precedence. See, Roddy v. Volunteer Medical Clinic, Inc., 926 SW 572, 576 (Tenn. App. 1996). Because this view has not been expressly adopted in New Hampshire, however, court affirmation should be sought if time permits. If the mature minor’s preference is to reject life-saving treatment, the preferred course is to petition for appointment of a guardian ad litem to determine whether the treatment is in the minor’s best interest. Courts have generally been reluctant to grant mature minors’ rights coextensive with those of adults to refuse treatment. See, Novak v. Cobb County Kennestone Hospital Authority, 74 F.3d 1173 (11th Cir. 1996) (affirming summary judgment in favor of a hospital that obtained a court order authorizing a life-saving blood transfusion, and subsequently administered the transfusion despite the minor patient’s religious objections and refusal to consent to treatment). In such cases, the provider should be prepared to describe the recommended treatment, the likelihood of death or serious harm if treatment is not provided and the likelihood of avoiding these outcomes through the treatment. It should also be prepared to offer testimony, including psychiatric assessments of the minor’s capacity to make medical decisions. If there is not time for judicial review then, given the current judicial reluctance to permit minors to refuse life-saving treatment, the most conservative course of action from a liability avoidance perspective is to provide the treatment.

d. Financial Considerations.

While disputes involving the capacity of minors to consent to treatment are rare, a number of cases have arisen concerning the parents’ obligation to pay for care to which only the minor has consented. Parents generally are obligated to pay for medical care provided to their children. This rule applies to emergency services provided without the parent’s consent, but not to elective procedures, unless the parent has agreed to be financially responsible. Therefore, parental consent is typically obtained for elective medical services. Providers run a risk of no payment without it.

e. Seeking Advance Parental Assent to Limited Access

Another approach suggested by the HIPAA Privacy Rule is to address privacy issues with both parents and the adolescent child at the commencement of treatment to see whether agreement on access can be obtained. If the parents agree that the information can remain confidential, then they cannot later seek access to it absent exceptional circumstances. This approach also addresses the financial concerns raised when adolescents seek medical care without parental knowledge and consent; that is, parents are likely obligated to pay for the care by virtue of their assent to the confidentiality of the information.

7. Adult Incompetent Children

Many parents of mentally disabled children assume that because they continue to care for their children after they turn 18, that they are the “guardians” for their children. Legally, this is not the case. The parents must formally petition the probate court in their county to become the legal guardian of adult incompetent patients.

8. Access to the Records of Deceased Minors
Often parents (or the lawyers of) of a deceased child demand access to the child’s records to “see what happened.” Guardianship relationships such as parental relationships and court-appointed guardianships terminate once a child, or any person forthat matter, dies. Thus, an authorization executed by the parent of a deceased child should not be honored. The only way for the parents to access the deceased child’s records is to become appointed the executor or administrator of their child’s estate. Even if the child had no assets, so that formal estate administration is not warranted, the parents can petition to become administrators for purposes of seeking medical information through a process outlined in NH Probate Court Administrative Order 13 which is attached at the end of these materials.

B. Emancipated Minors

An emancipated minor may consent to medical treatment and release information associated with treatment without parental consent. Emancipation occurs when a minor assumes the lifestyle and responsibility of an adult. It may be manifested by marriage, maintenance of a separate home or lack of reliance on parental support. While marriage and entering military service are recognized in this State as events causing the emancipation of a minor, New Hampshire, unlike some states, does not generally provide for emancipation of other minors by court decree. Emancipation decrees issued by other states, however, will be recognized in this State. RSA 21-B:2.

C. When Minors are Parents

Minors who are themselves parents have full parental rights with respect to their children. This means that they have the right to authorize access to their child’s health information, unless they demonstrate a lack of capacity (at which point a guardian should be sought for the infant).

D. Abortion Records and Reproductive Health

New Hampshire took a foray into the issue of whether minors can obtain abortions without parental consent by enacting in 2003 a statute requiring parental notification, but not consent, prior to the performance of an abortion on an unemancipated minor. RSA 132:24-:28. Planned Parenthood challenged this law, and two days before it was to become effective (12/31/03), the United States District Court for the District of New Hampshire ruled that the law was unconstitutional. That decision was appealed by the State in the United States Supreme Court, which in turn remanded it back to the district court for further consideration. While pending before the lower court, the NH legislature voted at that time to repeal the law.

The current legislature has again adopted a parental notification law which became effective January 1, 2012. According to a recent news report, Planned Parenthood has no plans to challenge the law this time. The law requires notification in the following manner:

132:33 Notification Required. –
I. No abortion shall be performed upon an unemancipated minor or upon a femalefor whom a guardian or conservator has been appointed pursuant to RSA 464-A because of a finding of incompetency, until at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in paragraphs II and III.

II. The written notice shall be addressed to the parent at the usual place of abode of the parent and delivered personally to the parent by the physician or an agent. III. In lieu of the delivery required by paragraph II, notice shall be made by certified mail addressed to the parent at the usual place of abode of the parent with return receipt requested and with restricted delivery to the addressee, which means the postal employee shall only deliver the mail to the authorized addressee.

Time of delivery shall be deemed to occur at 12 o'clock noon on the next day on which regular mail delivery takes place, subsequent to mailing. The new law goes on to provide that alternatively, the girl can provide a written waiver of notice signed by her parents, or seek a judge’s permission for the abortion instead of having the provider send a certified notice to the parents. RSA 132:34. If judicial permission is sought, but the judge denies the request, the girl has 30 days to appeal to the New Hampshire Supreme Court, which must rule within 48 hours of receiving the appeal. Performing an abortion in violation of the law is a misdemeanor, and gives rise to a civil claim by any person wrongfully denied notification. RSA 132:35. The judicial process is outlined in Superior Court Rule 54.

There is no NH law on whether a minor can seek reproductive services such as prescription contraceptives without parental consent, and deny parental access to this information. Federal constitutional privacy rights, however, are implicated if a minor seeks treatment regarding contraception or abortion. Carey v. Population Services Inter., 431 U.S. 678, 684-85 (1977); see also, Griswold v. Connecticut, 381 U.S. 479 (1965). The right to privacy prohibits unjustified governmental interference in personal decisions “relating to marriage, procreation, contraception, family relationships, child rearing and education.” Even though privacy is a ‘fundamental right’ important state interests may be balanced against it. Roe v. Wade, 410 U.S. 113, 154 (1973).

Privacy interests of minors are entitled to somewhat less protection from state interference than privacy interests of adults because the heightened vulnerability of children to harm makes the state’s countervailing interest in the protection of minors stronger than its interest in protection of adults. Goodrow v. Perrin, 119 N.H. 483, 485- 86 (1979). Thus, the United States Supreme Court has upheld statutes like the ones just adopted in New Hampshire that require minors to notify parents. It has also upheld laws that require the minor to obtain the consent of at least one parent, or get judicial approval for an abortion. Planned Parenthood v. Casey, 112 S. Ct. 2791, 2832 (1992). The

Supreme Court considered the judicial bypass provision to be an acceptable accommodation to alleviate the invasion of privacy otherwise caused by the consent requirement. The authority, absent statutory restriction, for minors to consent to treatment was not questioned. From this implicit acknowledgment of the minor’s right to consent, it can be inferred that in states that have not addressed the consent issue or provided mechanisms for judicial review (or where such legislation has been found unconstitutional), minors can consent to abortion procedures, and thus deny their parents access to this information.

A similar analysis can be applied to the prescription of contraceptive drugs or devices for minors. Specifically, constitutional privacy rights provide a strong basis supporting the decision of a provider to prescribe appropriate contraception at a minor patient’s request without parental consent or notice of treatment.

Should the provider be concerned that the child has a significant risk of serious bodily harm or death from the requested service, however, it may be appropriate to notify parents even over the objection of the child. Judicial intervention may be the wisest course if time permits.

E. Treatment for Sexually Transmitted Diseases and Substance Abuse

RSA 141-C:18, II authorizes minors who are 14 or over to voluntarily submit to treatment for a sexually transmitted disease and permits the physician to diagnose, treat and prescribe based on the minor’s consent. Because these minors are deemed competent to obtain this treatment, they would also be considered competent to authorize the disclosure of this information, or forbid disclosure to parents. Obviously, the sensitivity of the information would suggest that the provider explain the ramifications of denying access to the information by parents. RSA 318-B:12-a similarly authorizes minors who are 12 and over to consent to substance abuse treatment.

F. Child Abuse Reporting Requirements

1. General Rule

RSA 169-C:29 imposes an obligation on all medical providers to report immediately “by telephone or otherwise” to the New Hampshire Department of Health and Human Services any time they have reason to suspect that a child has been abused or neglected.

See also RSA 169-C:32 (specifically abrogating all privileges between professionals and their patients/clients – except attorneys and their clients – in child abuse proceedings and reporting requirements) and RSA 169-C:38 (which requires the reporting of sexual exploitation of children). The initial report must be followed up by a written report within 48 hours of discovery. The report must include:

• the name and address of the child,
• the person responsible for the child,
• the details of the child’s injuries or information regarding suspected neglect,
• the identity of the suspected abuser(s), and
• any other information that might be helpful in establishing neglect or abuse that may be required by HHS. RSA 169-C:30. Providers who comply in good faith with this reporting requirement are immune from both civil and criminal liability. RSA 169-C:31. Failing to comply with the reporting requirement in this chapter subjects the medical provider to criminal misdemeanor charges. RSA 169-C:39.

The HIPAA equivalent provision permitting disclosure of information related to child abuse is 42 CFR 164.512(b)(1)(ii).

2. Must a Provider Report Sexually Active Minors?

a. Statutory Standards:

RSA 169-C:3, II (a) defines an “abused child” to include one who has been “sexually abused.” “Sexual abuse,” in turn, is defined as the involvement of a child in the production of pornography, the sexual exploitation of children (i.e., rape, molestation, prostitution or other sexual exploitation), or incest with children.2 The key part of the definition is whether the circumstances indicate that the child’s health or welfare is harmed, or threatened with harm.

Rape obviously involves situations where any minor is forced or coerced into sexual contact or penetration, or is mentally impaired or intoxicated at the time of the sexual encounter. Additionally, RSA 632-A defines “statutory rape” to include the following even if the minor consents:

• Actor any age:

- sexual penetration or contact with a victim less than 13 years old,

- a pattern of sexual assault against a victim who is less than 16 years old;

- victim is 13 ≤ age < 16 and actor is member of same household or related by blood or affinity to minor;

- sexual contact with a victim who is older than 13 under circumstances showing force, coercion, or other circumstances delineated in RSA 632-A where the victim is essentially helpless to resist.

• Actor more than 3 years older than victim:

- sexual penetration with victim who is 13 ≤ age < 16.

• Actor more than 5 years older than victim:

- sexual contact with victim who is 13 ≤ age < 16.

For purposes of these categories, “contact” and “penetration” are defined as follows:

• "Sexual contact'' means the intentional touching whether directly, through clothing, or otherwise, of the victim's or actor's sexual or intimate parts, including breasts and buttocks. Sexual contact includes only that aforementioned conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification.
• "Sexual penetration'' means:

(a) Sexual intercourse; or
(b) Cunnilingus; or
(c) Fellatio; or
(d) Anal intercourse; or
(e) Any intrusion, however slight, of any part of the actor's body or any object manipulated by the actor into genital or anal openings of the victim's body; or
(f) Any intrusion, however slight, of any part of the victim's body into genital or anal openings of the actor's body;
(g) Any act which forces, coerces or intimidates the victim to perform any sexual penetration as defined in subparagraphs (a)-(f) on the actor, on another person, or on himself.
(h) Emission is not required as an element of any form of sexual penetration. RSA 632-A:1, IV and V.

b. When Report is Required:

Assimilating the reporting statute and definitions of rape, providers should be reporting the following sexual activity regardless of whether the patient indicates that it was consensual:

•  When the child/patient is under 18, and informs the provider, or the provider suspects, that the child/patient is involved in any of the defined types of sexual abuse, particularly if the patient indicates circumstances suggesting coercion.
• Sexual contact or penetration when the patient is under 13, or conversely, if the patient is the older partner, when the younger partner is under age 13.
• Sexual activity with a member of the same household (even if not related by blood or affinity), a family member, or actor related by blood or marriage, when the patient (or younger partner if the patient is the older partner) is 13 ≤ age < 16;
• Sexual penetration if the actor is 3 or more years older than patient (i.e., at least 16 if a 13 yo patient); or conversely if the patient is the older partner, when the younger partner is more than 3 years younger than the patient.
• Sexual contact if the actor is 5 or more years older than the patient (i.e., at least 18 if a 13 yo patient); or conversely if the patient is the older partner, when the younger partner is more than 5 years younger than the patient.

c. No Report Required:

When the Patient is the younger partner in a sexual relationship:

• Patient 13 ≤ age < 16: There is no requirement of reporting consensual sexual activity when the patient’s partner is within 3 years of the patient’s age (penetration involved), or within 5 years of the patient’s age (sexual contact only) absent circumstances suggesting abuse.
• Patient age ≥ 16: No requirement of reporting sexual activity absence circumstances suggesting abuse.
• When the Patient is the older partner in a sexual relationship with a minor under the age of 16:
• Younger partner within 3 years of patient’s age (penetration);
• Younger partner within 5 years of patient’s age (contact only).

G. Adoption Records key statute: RSA 170-B:24 (eff. July 30, 2006)

During the summer of 2004, the New Hampshire legislature explored whether it should change its long-standing policy against disclosing the identity of the natural parents of an adopted child to that child, or the identity of the adopted child to his or her natural parents after the adoption. A bill was introduced which would have permitted an adopted child to obtain his or her parents’ or close relatives’’ medical information with identifying information. After the outcry from medical providers and other stakeholders, and an education on HIPAA privacy requirements, the legislature backed away from this radical departure from prior policy. Instead, it recodified the previous medical information provision in the adoption statute (RSA 170-B:19) into a new provision (RSA 170-B:24). The current version of RSA 170-B:24, which became effective July 30, 2006, permits adoptees over age 18, their adopting parents, and natural parents to receive nonidentifying health information about the child or natural parents held by the agency facilitating the adoption; it does not provide for requests made directly to a medical provider.

The agency or department involved in the adoption is obligated to “delete any information from the health history or background which would tend to be identifying.” RSA 170-B:24.

An adopted child over the age of 18, their adopting parents if the child is a minor, and natural parents can authorize release of identifying information about each other. The consents, however, can be revoked at any time. For example, at the time of adoption, a natural parent can sign a consent form which allows his or her identity to be revealed if the child desires to make contact with him or her the child turns 18. RSA 170-B:24, II. That consent would be placed on file with the agency or department effecting the adoption, and a copy sent to the court approving the adoption. If a request for identifying information is made, the agency or department will first attempt to contact the natural parent assuming the authorization has not been revoked. If the parent reaffirms the authorization, cannot be located, or is deceased, the information will be disclosed. RSA 170-B:24, II(e). Under previously law, if the parent could not be found, a court order would have been required prior to the release of the information.

A court order is required prior to the release of identifying medical information if the parties do not agree, have not previously filed an authorization with the agency or department and cannot be located, or if the agency or department questions the safety of releasing the information. Although decided prior to the enactment of RSA 170-B:24, the New Hampshire Supreme Court has held that the person seeking information through a court petition as a “heavy burden” to establish good cause. In re Estate of McQuesten, 133 N.H. 420 (1990).

H. Foster Care

When a child is removed from his/her home by the Division for Children, Youth and Families (DCYF), they may be placed in foster homes for care. While the regulations which govern the duties of foster parents require them to cooperate in obtaining medical care for children placed in their care, see HeC 6446.18, it is not entirely clear whether the foster parents themselves have authority to consent to treatment or to the disclosure of the child’s medical information.

RSA 169-C, which permits DCYF to gain custody of a child, gives the agency the “responsibility to provide the child with…ordinary medical care provided that such rights…shall be exercised subject to the power, rights, duties and responsibilities of the guardian of the child and subject to residual parental rights and responsibilities if these have not been terminated by judicial decree.” RSA 169-C:3, XVII(d). A guardian, like a parent, is deemed to have the authority to consent to “major medical, psychiatric and surgical treatment.” RSA 169-C:3, XIV(a). A foster parent, in turn, is given custody of the child by the division.

Analyzing these provisions together, it appears that DCYF, not the foster parent, has the ability to consent to ordinary health care decisions for the child, but that this right is subject to whatever rights the court grants to the guardian, or rights retained by the child’s parents. DCYF probably has the right to authorize access to the records given its ability to consent to treatment, but this right may be limited by the terms of any court order. (DCYF may then in turn provide an authorization for the foster parent to access health information).

The prudent medical provider should probably inquire about any restrictions in access ordered by the court, and note the same in the child’s records. Furthermore, it is important to remember that placement of a child with DCYF does not automatically mean that parents lose their right to access the child’s information. Again, the circumstances of each case will hinge on any court order issued in the case.

1 The In re Berg and Berg decision discussed supra provides at least implicit recognition that there are circumstances where a minor may deny parental access to health information beyond the statutory recognition that minors can seek treatment for substance abuse and STDs.

2 The actual definition of “sexual abuse” is “[T]he following activities under circumstances which indicate that the child's health or welfare is harmed or threatened with harm: the employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or having a child assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children. RSA 169-C:3, XX