Proposed Revisions, Federal Register, 3/27/2002

Existing Language, Final Rule, 12/28/2000

§ 164.502 Uses and disclosures of protected health information: general rules.

§ 164.502 Uses and disclosures of protected health information: general rules.

[No change proposed to (g)(1) or (2), conforming changes in (3) and a new (ii) added.]

(g)(1) Standard: personal representatives. As specified in this paragraph, a covered entity must, except as provided in paragraphs (g)(3) and (g)(5) of this section, treat a personal representative as the individual for purposes of this subchapter.

(2) Implementation specification: adults and emancipated minors. If under applicable law a person has authority to act on behalf of an individual who is an adult or an emancipated 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 representation.

(3) Implementation specification: unemancipated minors.

(i) 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 representation, 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) (A) 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) (B) 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) (C) 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.

(ii) Notwithstanding the provisions of paragraph (g)(3)(i) of this section:

(A) A covered entity may disclose protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis if an applicable provision of State or other law, including applicable case law, permits or requires such disclosure; and

(B) A covered entity may not disclose protected health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis if an applicable provision of State or other law, including applicable case law, prohibits such disclosure.

(iii) Notwithstanding the provisions of paragraph (g)(3)(i) of this section, a covered entity must, consistent with State or other applicable law, provide a right of access, as set forth in §164.524 to either:

(A) A parent, guardian, or other person acting in loco parentis, as the personal representative of the unemancipated minor;

(B) The unemancipated minor; or

(C) Both.

[proposed rule would add (ii) and (iii), at right]