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IssueBrief
April 2020
Number 20-14
Minors' Medical Records and Consent to Care
By Julia Group and Vanessa Reilly
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. It also discusses state law pertaining to the
ability of minors to consent to medical care.
HIPAA Privacy Rule and Parents
A provision of HIPAA, known as the privacy rule,
limits unauthorized disclosure of a patient’s personal
health information by covered entities. Covered
entities include most health care providers, health
insurance companies, government health programs
like Medicare and Medicaid, and entities that process
health information, such as medical billing services.
In most situations, parents of an unemancipated
minor child are able to access their child’s medical
records because they are considered to be their
child’s personal representative. Under HIPAA, a
personal representative is someone who is
authorized to make health care decisions on another
person’s behalf.
1
In certain situations, a parent is not considered a
child’s personal representative unless the minor
requests that the parent be treated as such. These
circumstances include:
when a minor consents to care and a parent’s
consent is not required under the law;
when a minor receives care, and consent for such
care is given by a court or a person appointed by
a court; or
1
45 C.F.R. Section 164.502 (g)(3)(i).
2
45 C.F.R. Section 164.502 (g)(3)(ii).
when a parent consents to confidentiality
between a health care provider and minor.
In spite of these exceptions, HIPAA defers to state
law that requires, permits, or prohibits parental
access to medical records. In such cases, HIPAA
permits a health care provider to exercise
professional judgment, consistent with state law, to
provide or deny parental access.
2
The privacy rule includes an additional exception in
regard to personal representatives: a health care
provider may choose not to treat a parent as a
personal representative if the provider reasonably
believes, using professional judgment, that it is not in
the minor’s best interest to treat the parent as the
personal representative, because the minor has been
or may be subject to domestic violence, abuse, or
neglect by the parent, or because treating the parent
as a personal representative could endanger the
child.
3
Minor Consent to Care
Under Colorado state law, the age of competence for
which someone is permitted to make decisions in
regard to his or her own body is 18 years or older.
4
However, minors are able to consent to several types
of medical treatment under the law. Many laws that
allow a minor to consent to medical treatment
address medical situations in which a minor may be
less likely to seek treatment if parental consent were
required.
3
45 C.F.R. Section 164.502 (g)(5).
4
Section 13-22-101, C.R.S.
Legislative Council Staff ● Room 029 State Capitol ● Denver, CO 80203 ● 303-866-3521 ● [email protected]s ● leg.colorado.gov/lcs
Minors Living Apart From Their Parents
Minors aged 15 or older who are living apart from
their parents and managing their own financial
affairs, regardless of the source of their income, may
consent to their own medical care of any kind, as well
as to donation of their organs and tissue.
Additionally, minors who are married may consent
to their own medical care and organ and tissue
donation without parental consent. Minors who are
parents may also consent to any medical care, as well
as donation of organs or tissue for their child.
5
Minors Receiving Pregnancy-Related Care,
Contraceptive Care, and Abortion
Procedures
Minors who are pregnant may consent to pregnancy-
related care.
6
Minors may obtain contraceptive
information, procedures, and supplies if they request
them and are in need of such services or when they
have been referred for these services by another
doctor, member of the clergy, family planning clinic,
school, or agency of the state.
7
Unmarried minors
under the age of 18 may not consent to permanent
sterilization procedures without a parent or
guardian’s consent.
8
Parents or guardians of a minor
must be notified of a minor’s scheduled abortion at
least 48 hours in advance of the procedure, but their
consent is not required for the procedure to take
place.
9
Minors Who Are Victims of a Sexual
Offense
When a minor indicates that she or he has been the
victim of a sexual offense, the minor may consent to
a provider performing the necessary examinations to
obtain evidence of the offense, and to receive
treatment for any condition caused by the sexual
offense. However, the provider is directed by state
law to make a reasonable effort to notify the parents
or guardians of the minor in such circumstances of
5
Section 13-22-103 (1), C.R.S.
6
Sections 13-22-103 (3) and 13-22-103.5, C.R.S.
7
Sections 13-22-105 and 25-6-102, C.R.S.
8
Section 25-6-102 (6), C.R.S.
9
Section 13-22-704, C.R.S.
the sexual offense, prior to examining or treating the
minor. If the provider is not able to notify the parents
or guardians, she or he may still examine and treat
the minor. If the parents or guardians object to
treatment, the provider may proceed under the
provision of the Child Protection Act of 1987.
10
Minors Receiving Care for Sexually
Transmitted Infections
Parental consent is not required for a minor seeking
diagnosis or treatment of a sexually transmitted
infection. Providers may also discuss preventative
measures, where applicable. Providers may choose
to involve a parent or guardian if the minor seeking
diagnosis or care is 13 years old or younger. Whether
or not the provider chooses to involve the parent, he
or she must counsel the minor patient on the
importance of involving the parent in the
diagnosis or treatment.
11
Minors Receiving Care for Substance Use
Disorder Treatment and Mental Health
Services
Under state law, minors may consent to receive
medical treatment for a substance use disorder
without the consent or notification of a parent or
guardian.
12
In regard to mental health services, a
mental health professional may provide outpatient
psychotherapy services to a minor who is aged 12 or
older if he or she is voluntarily seeking such services
and provision of such services is clinically indicated.
The consent of the parent or guardian is not required
unless the provider believes the minor is unable to
manage his or her care, but the provider should
discuss and encourage notifying the minor’s parent
or guardian. Notification of a parent or guardian
may occur with the minor’s consent and if
determined not to be detrimental to treatment. If the
minor communicates an intent to commit suicide, the
provider shall notify the parent or guardian.
13
10
Sections 13-22-106 and 19-3-301, et seq., C.R.S.
11
Section 25-4-409, C.R.S.
12
Section 13-22-102, C.R.S.
13
Section 12-245-203.5
