Consent and Confidentiality for Children in New Mexico

1. Consent and Confidentiality for Children in New Mexico Presented by Tara Ford Pegasus Legal Services for Children

2. Overview Consent and confidentiality are distinct legal concepts. Multiple laws are relevant to figuring out what care children can consent to on their own and whether that care can be confidential. NM policy choices: reproductive health care, mental health care, and access to services for homeless teens and teens who are parents. Who the professional works for impacts whether health or mental health service is confidential.

3. Consent Understand the medical condition and risks and benefits of proposed health care treatment. Voluntarily decide whether or not to proceed with a treatment recommendation. Communicate decision. Uniform Health Care Decisions Act; Children�s Mental Health and Developmental Disabilities Act.

4. NM Law Addressing Children�s Ability to Consent to Services. Reproductive Health Care Mental Health Care Medically Necessary Care for 14+ Homeless Youth and Youth Who Are Parents

5. Reproductive Health Care NMSA 24-1-9: sexually transmitted diseases NMSA 24-1-13.1 pregnancy related treatment NMSA 24-8-5 contraception

6. Mental Health Services NMSA 32A-6A-14 For children under 14, parents consent to treatment, except: A child under fourteen years of age may consent to an initial assessment for medically necessary early intervention service limited to verbal therapy.� The purpose of the initial assessment is to allow a clinician to determine what, if any, action needs to be taken to ensure appropriate mental health or habilitation services are provided to the child.�A clinician has two weeks to conduct this assessment.

7. Mental Health Services 32A-6A-15. Consent for services; children fourteen years of age or older. �A child fourteen years of age or older is presumed to have capacity to consent to treatment. (individual psychotherapy, group psychotherapy, guidance counseling, case management, behavioral therapy, family therapy, counseling, substance abuse treatment or other forms of verbal treatment that do not include aversive interventions).� Psychotropic medications may be administered to a child fourteen years of age or older with the informed consent of the child and notice to parent.� If child 14+ lacks capacity, process for parent to act as surrogate without court order.

8. Homeless Youth and Youth Who are Parents 24-7A-6.2. Consent to health care for certain minors fourteen years of age or older. An unemancipated minor fourteen years of age or older who has capacity to consent may give consent for medically necessary health care; provided that the minor is: (1)� � �living apart from the minor's parents or legal guardian; or (2)� � �the parent of a child

9. Confidentiality Right to control access to health care and mental health care information. Requirement on health care provider not to release information about the patient except as allowed by law. Complicated concept as applied to children. Services provided by school district employees to students require separate analysis.

10. Health Insurance Portability and Accountability Act/ HIPAA Generally parents have access to child�s medical records. 45 CFR 164.502(g) Exceptions: a. Minor consents to care and consent of parent not required under state law; b. Minor obtains care at direction of a court; c. Parent agrees to confidential relationship; d. Still have to look to state law � 1. If state permits or denies access state law controls. 2. If state law is silent, provider may exercise professional judgment

11. Duty to Report Abuse and Neglect Every person, including but not limited to . . . a schoolteacher or a school official or social worker acting in an official capacity who knows or has a reasonable suspicion that a child is an abused or a neglected child shall report the matter immediately. NMSA 32A-4-3. CHANGE IN CODE: Must �personally� report (meant to address schools that required report to come through principal).

12. NM Laws on Confidentiality Reproductive Health Care Generally, NM law specifically addresses consent and is silent as to confidentiality. Exception: test results for sexually transmitted diseases may be released to both�the subject of the test or the subject's legally authorized representative, guardian or legal custodian. NMSA 24-1-9.4��� Homeless Youth and Youth Who are Parents Statute is silent as to confidentiality.

13. Confidentiality for Mental Health Care 32A-6A-24. Disclosure of information. When the child is under fourteen years of age, the child's legal custodian is authorized to consent to disclosure on behalf of the child.� Information shall also be disclosed to a court-appointed guardian ad litem without consent of the child or the child's legal custodian. A child fourteen years of age or older with capacity to consent to disclosure of confidential information shall have the right to consent to disclosure of mental health and habilitation records.� A legal custodian who is authorized to make health care decisions for a child has the same rights as the child.

14. Exceptions under MH Code Authorization from the child or legal custodian for a child less than fourteen years of age shall not be required when disclosure:� (1)� � �is necessary for treatment made in response to a request from a clinician;�� (2)� � �is necessary to protect against a clear and substantial risk of imminent serious physical injury or death inflicted by the child on self or another;�� (3)� � �is determined by a clinician not to cause substantial harm to the child (summary information essential to the child's treatment) can be provided to child's legal custodian or guardian ad litem;�� (4)� � �is to the primary caregiver of the child and the information disclosed was necessary for the continuity of the child's treatment;�� (5)� � �is to an insurer contractually obligated to pay part or all of the expenses relating to the treatment of the child at the residential facility (only specific information can be provided)� (6)� � Disability Rights New Mexico; or� (7)� � �is pursuant to a court order issued for good cause shown.�

15. School Services Education services are governed by FERPA Parental Right to School Information

16. �FERPA: 20 U.S.C.1232; 34 C.F.R. Part 99 Education records are currently defined as records that are directly related to a �student� and maintained by an �educational agency or institution� Personal notes and memory aids that are used only by the person who made them are not educational records. But if notes are shared with or disclosed to another person, notes are educational records. Parents have a right to inspect and review all educational records relating to their child. This right to �inspect and review� includes the right to have copies of records and to receive explanations and interpretations from school officials.

17. FERPA FERPA does not allow schools to protect health information differently than other school information when it is created by school personnel. Must determine whether the school based health center is separate from school. Will be considered separate if it is clear that health care provider owns the medical practice and controls medical records. In other words, site of service is not controlling.

18. Requirements on School Employees 22-5-4.4. School employees; reporting drug and alcohol use; release from liability. A school employee who knows or in good faith suspects any student of using or abusing alcohol or drugs shall report such use or abuse pursuant to procedures established by the local school board.���

19. Protecting Confidential Information Develop policies and procedures that protect confidential student health information, yet allow for exchange of information between the school-based health center and school staff, as well as between the school based health center and community health professionals, whenever information exchange is determined to be in a student's best interest. Maternal Child Health Bureau http://www.nationalguidelines.org/guideline.cfm?guideNum=4-31