Federal HIPAA Law Oversteps Parental Rights

In children's behaviour, Childrens Rights, Civil Rights, Divorce, family court, Family Court Reform, Family Rights, fatherlessness, Freedom, HIPAA Law, Liberty, mothers rights, National Parents Day, Non-custodial mothers, Parents rights, state crimes on May 13, 2009 at 3:44 pm

by Michael P. Farris, J.D.

Sid Daugherty, a father from Sullivan County, Tennessee, took his 13 year-old son to the doctor this spring seeking assistance because of some reactions his son was having to his prescription medication. The doctor asked the father if he could perform some tests to see if the boy was also using illegal drugs. The dad agreed.

But, when the tests came back, the doctor refused to give the dad the results citing the right of the child to medical privacy.

As a result, the Tennessee legislature is scheduled to take up a bill attempting to ensure that parents always have the results of their children’s medical exams.
Most of us are surprised to learn that such a bill is deemed to be necessary. Don’t all parents have the right to their children’s medical information? After all, the doctor thought he had to get the dad’s permission to perform the tests; how in the world can it be suggested that the father didn’t have the right to see the results?

The answer is: our federal government has invaded parents rights through the HIPAA regulations—yes, those same regulations that waste millions of pieces of paper every year by requiring that doctors give us pages of tiny print legalese that most Americans have the good sense to simply ignore.

The federal government maintains a website, giving official answers to questions about the implementation of HIPAA. This is what that site says about parental rights:

What right does a minor have under HIPAA to claim his or her own privilege to deny access to records under HIPAA? If the minor does not want parents or others to have access to his or her records, can the provider refuse to provide the records to the parents?

The short answer to this question is that if the health care provider or facility concurs with the minor that the parents should not have access to his or her treatment records, the minor has a good chance of precluding parents from access to the records or granting access to others.

What is the authority for this “short answer”? The official regulations (45 CFR 164.502(g)(3)(ii)(C)—this is the number of the rule for those keeping score at home) say that unless state law requires a doctor to disclose the medical information to the parent, the doctor may unilaterally refuse to give the information to the parent if the doctor’s decision is “in the exercise of professional judgment.” This section is not limited to cases of suspected abuse or neglect. In fact, there is a separate section of the federal regulations which covers such cases.

It is important to see the role that the wishes of the child play in this situation. The question asks whether a child may keep his medical records a secret. But the regulation gives the doctor unilateral control to withhold information from parents. No request from the child is required to trigger the doctor’s power to keep parents in the dark. It is the doctor’s judgment alone that allows him to withhold medical results from parents.

This is the normal way that children’s rights theories work out in practice. The power lands in the hands of an army of self-appointed nannies who believe that they should make decisions about children in place of parental judgment.

A reasonable question still remains: What about the Constitution? Most people think that parents have a constitutional right to raise their children in a way that cannot be undermined by some federal regulation. Well, unfortunately most Americans do not include the current members of the United States Supreme Court.

In Troxell v. Granville, decided in 2000, the Supreme Court split six different ways on the issue of parental rights. Only one justice, Clarence Thomas, ruled that parental rights are a fundamental right and that the same high legal tests for all fundamental rights should be made applicable here.

Justice Scalia, a friend of conservative values in most cases, said that he could not find any legally enforceable right of parents in the Constitution so until there was a constitutional amendment protecting parental rights, he was required to conclude that the government can override parents’ wishes on a whim.

Congressman Pete Hoekstra has introduced HJR 42, the Parental Rights Amendment, to fix this problem once and for all by putting the traditional test of parental rights into the actual text of the Constitution. There are currently 85 co-sponsors for this Amendment in the House of Representatives. Senator Jim DeMint has announced that he intends to introduce this same bill in the Senate later this spring.

Under the Parental Rights Amendment, this HIPAA regulation would be clearly unconstitutional. In abuse cases, doctors could withhold medical results from parents who are the perpetrators of abuse under official investigation. But, the idea that the doctor could simply invoke “professional judgment” to override the wishes of parents would simply not be possible. With the PRA, parents would be guaranteed a legally enforceable right without worrying about what they are going to find buried in the fine print of some federal regulation.


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