Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
Abigail English, JD, Center for Adolescent Health & the Law
March 2019
Center for
Adolescent Health
& the Law
Contributors
This publication was created for the Adolescent & Young Adult Health National Resource Center by Abigail English, JD, of the Center for
Adolescent Health & the Law, in collaboration with the Association of Maternal & Child Health Programs (AMCHP); the National
Adolescent & Young Adult Health Information Center (NAHIC) at the University of California, San Francisco (UCSF); the State Adolescent
Health Resource Center (SAHRC) at the University of Minnesota; and the University of Vermont National Improvement Partnership
Network (NIPN).
Adolescent & Young Adult Health National Resource Center
The National Adolescent and Young Adult Health National Resource Center (AYAH-NRC) – supported by the Maternal and Child Health
Bureau – was established in September 2014 to help states improve receipt and quality of preventive services among adolescents and
young adults. The AYAH-NRC is housed at the National Adolescent and Young Adult Information Center at the University of California, San
Francisco, in close partnership with: the Association of Maternal & Child Health Programs; the University of Minnesota State Adolescent
Health Resource Center; and the University of Vermont National Improvement Partnership Network. The Center aims to promote
adolescent and young adult health by strengthening the abilities of State Title V MCH Programs, as well as public health and clinical
health professionals, to better serve these populations (ages 10-25).
Center for Adolescent Health & the Law
PO Box 3795 | Chapel Hill, NC 27515‐3795
ph. 919.968.8850 |e‐mail: [email protected]
http://www.cahl.org
The Center for Adolescent Health & the Law supports laws and policies that promote the health of adolescents and young adults and
their access to comprehensive health care. Working nationally, the Center clarifies the complex legal and policy issues that affect access
to health care for the most vulnerable youth in the United States. The Center provides information and analysis, publications,
consultation, and training to health professionals, policy makers, researchers, and advocates who are working to protect the health of
adolescents and young adults.
Suggested Citation
English A. Adolescent & Young Adults Health Care in New Mexico: A Guide to Understanding Consent & Confidentiality Laws. San
Francisco, CA: Adolescent & Young Adult Health National Resource Center; and Chapel Hill, NC: Center for Adolescent Health & the Law,
2019. http://nahic.ucsf.edu/resource_center/confidentiality-guides/.
Disclaimer
This document provides information. It does not constitute legal advice or representation. For legal advice, readers should consult their
own counsel. When seeking legal advice, a practicing attorney who has knowledge of all relevant federal, state, and local laws and who
has been informed of all relevant details of the situation should be consulted. The legal information in this publication is current through
March 2019. Laws may change, so updated information must be sought to address specific situations.
Acknowledgements
The author and the AYAH National Resource Center gratefully acknowledge the careful review of this document and comments provided
by several individuals in New Mexico with expertise in adolescent and young adult health. The author extends special thanks to Charles
Irwin, Claire Brindis, and Jane Park of NAHIC, University of California, San Francisco; Kristin Teipel of SAHRC, University of Minnesota; and
Iliana White and Caroline Stampfel of AMCHP for their advice and support.
Support
This publication was supported in part by the Health Resources and Services Administration (HRSA) of the U.S. Department of Health and
Human Services (HHS), (cooperative agreement, U45MC27709), as part of an award totaling $1,350,000. The contents are those of the
author(s) and do not necessarily represent the official views of, nor an endorsement by, HRSA, HHS or the U.S. Government.
Adolescent & Young Adult Health National Resource Center
Center for Adolescent Health & the Law
March 2019
Table of Contents
Introduction ................................................................................................................................................................. 1
Importance of Protecting Confidentiality ....................................................................................................................... 1
Rationale for confidentiality ................................................................................................................................................2
Research findings about privacy concerns ..........................................................................................................................2
Health care professional organizations ...............................................................................................................................2
Confidentiality is not absolute .............................................................................................................................................3
Emerging Confidentiality Challenges ......................................................................................................................... 3
New Mexico Health Care Consent Laws ......................................................................................................................... 3
Minor Consent Laws in New Mexico.......................................................................................................................... 3
Linkage of consent & confidentiality ...................................................................................................................................3
Minors in Special Situations ...................................................................................................................................... 4
New Mexico Confidentiality Laws .................................................................................................................................. 4
Confidentiality Laws for Minors in New Mexico ......................................................................................................... 4
Federal Confidentiality Laws ......................................................................................................................................... 5
HIPAA Privacy Rule ................................................................................................................................................... 6
FERPA ...................................................................................................................................................................... 6
Title X Family Planning ............................................................................................................................................. 7
Medicaid.................................................................................................................................................................. 7
Drug and Alcohol Programs ...................................................................................................................................... 8
Ryan White HIV/AIDS Program ................................................................................................................................. 8
Federally Qualified Health Centers ............................................................................................................................ 8
Confidentiality and Preventive Services ......................................................................................................................... 8
Recommended preventive services for adolescents & young adults .................................................................................9
Conclusion ................................................................................................................................................................... 9
Table 1: New Mexico Health Care Consent Laws for Minors ...........................................................................................10
Table 2: New Mexico & Federal Confidentiality Laws for Minors ....................................................................................11
Table 3: New Mexico & Federal Confidentiality Laws for Young Adults ..........................................................................12
Appendix A: New Mexico Consent & Confidentiality Laws for Minors ............................................................................13
Appendix B: Federal Confidentiality Laws .....................................................................................................................18
Appendix C: Key Questions for Confidentiality Protection .............................................................................................22
Appendix D: Legal Resources for Adolescent & Young Adult Health & the Law in New Mexico ........................................23
Appendix E: Resources on Confidentiality, Health Insurance, and Electronic Health Records ...........................................24
Appendix F: 25 Years of AYAH Confidentiality Studies—A Bibliography .........................................................................25
Adolescent and Young Adult Perspectives ................................................................................................................25
Health Care Provider Perspectives and Availability of Confidential Services ...............................................................27
Parent Perspectives .................................................................................................................................................28
References ..................................................................................................................................................................30
Adolescent & Young Adult Health National Resource Center
Center for Adolescent Health & the Law
March 2019
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
Abigail English, JD
Center for Adolescent Health & the Law
INTRODUCTION
Confidentiality protections encourage adolescents and young adults to seek the health care they need and
safeguard their privacy when they receive services. The relationship between confidentiality of health
information and consent for health care is important. The specific ways the law protects confidentiality depend
on whether a patient is a minor or an adult and whether the patient can legally consent to their own care. Some
adolescents are minors—under age 18—and some are young adults—age 18 or older.
Young adults almost always may consent to their own care; minors may consent sometimes, but not always.
Young adults are entitled to the same confidentiality protections under state and federal laws as other adults.
“Minor consent laws” allow minors to consent for their own care in specific situations and for specific services.
Laws authorizing minors to consent and laws protecting confidentiality are closely linked but they do not always
match each other. Adolescent minors who consent for their own care are entitled to many confidentiality
protections; but these may be qualified or limited in ways that allow for disclosure of some information to
parents or others.
Numerous federal and state laws contain confidentiality protections for health information. The interplay of law
and ethics also is important in understanding confidentiality in the health care of adolescents and young adults.
Careful analysis of the relevant state and federal laws, informed by sound ethical principles, can clarify these
issues in New Mexico as in other states.
IMPORTANCE OF PROTECTING CONFIDENTIALITY
There are numerous reasons to protect confidentiality for the health care communications and health
information of adolescents and young adults. The most compelling is to encourage young people to seek
necessary care on a timely basis and to provide a candid and complete health history when they do so.
Additional reasons include supporting their developing sense of privacy and autonomy as well as protecting
them from the humiliation and discrimination that can result from disclosure of confidential information.
Offering confidential care can also help young people develop their capacity to engage independently with the
health care system. Decades of research findings have documented the importance of privacy concerns for
young people in the adolescent age group; additional research has found similar concerns among young adults.
Overarching goals of confidentiality protection include promoting both the health of individual young people
This guide provides a summary of legal consent requirements and confidentiality protections for adolescents
and young adults in New Mexico to inform health care providers and promote access to essential health care
including preventive health services.
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
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Center for Adolescent Health & the Law
March 2019
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and the public health. One key element of reaching these goals is ensuring that young people receive the health
care services they need.
Privacy concerns influence use of health
care in many ways. Many adolescents
are concerned about disclosure to their
parents of information related to sexual
behaviors, substance use, and mental
health. This is true even though many
adolescents voluntarily share a lot of
health information with their parents
and other trusted adults. Voluntary
communication can be very helpful in supporting adolescents’ and young adults’ health; mandated
communication and disclosure can be counterproductive unless they are necessary to protect the health of a
young person. Specifically, concerns about confidentiality and disclosure can affect whether adolescents seek
care,
1
,
2
,
3
where they seek care,
4
,
5
and how openly they talk with health care professionals.
6
Some young adults
also hesitate to use certain services unless privacy can be maintained.
7
Concerns that confidentiality will not be
protected can lead adolescents and young adults to forego or delay care or to be less than candid when they do
see a health care provider. (See Appendix F)
The effect of privacy concerns has been
especially well documented with respect to
adolescents’ use of sexual health services,
including care related to contraception,
pregnancy, and sexually transmitted diseases
(STDs). For example, one study found that
almost all adolescents would consent to STD
testing if their parents would not know, but
only about one third would agree if their parents would or might know.
8
According to another study, nearly one
half of adolescents would stop using family planning clinic services if parental notification were mandatory.
9
Yet,
a national survey found that only a very small minority of adolescents would stop having sex if parental
notification were mandatory for contraceptives, and a significant percentage would have riskier sex.
10
Health care professional organizations recognize the importance of confidentiality protections in health care.
These organizations have adopted codes of ethics and issued policies that address privacy and confidentiality
protections for patients generally, including young adults and adolescents.
11
They also have adopted policies
related to adolescent health care that address confidentiality for particular health care settings, special
populations, and specific services—
preventive health care, testing & treatment
for STDs & HIV, contraception, pregnancy-
related care, and other reproductive health
services. These policies often speak to the
importance of informing patients, including
adolescents and their parents, about
confidentiality and its limits.
Rationale for confidentiality
▪ Protect health of adolescents & young adults
▪ Protect public health
▪ Promote positive health behaviors & outcomes
▪ Avoid negative health outcomes
▪ Encourage adolescents & young adults to seek needed care
▪ Increase open communication with health care providers
Research findings about privacy concerns
Privacy concerns affect behavior and influence:
▪ Whether young people seek care
▪ When young people seek care
▪ Where young people seek care
▪ How openly young people talk with health care providers
Health care professional organizations
Codes of ethics and policies support:
▪ Rationale for confidentiality
▪ Scope of confidentiality and its limits
▪ Confidentiality in particular health care settings
▪ Confidentiality for specific populations of adolescents
▪ Confidential access to specific health services
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
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March 2019
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Confidentiality is not absolute. To understand the
scope and limits of legal and ethical confidentiality
protections, it is important to clarify: what may not be
disclosed because it is confidential and none of the
exceptions to confidentiality apply; what may be
disclosed based on the discretion of the health care
professional; and what must be disclosed because
there is another requirement, such as a reporting
requirement, that overrides confidentiality.
Emerging Confidentiality Challenges
Two sets of issues represent increasing challenges for protecting confidentiality in adolescent and young adult
health care. The first set comprises the issues associated with billing and health insurance claims, particularly
the use of explanations of benefits (EOBs) to communicate with health insurance policyholders.
12
,
13
The second
relates to the complex questions associated with use of and access to electronic health records (EHRs) and web
portals.
14
,
15
,
16
In these arenas, laws and policies as well as best practices are evolving rapidly. Thorough
discussion of these issues is beyond the scope of this guide, but considering them is essential in any effort to
protect confidentiality for adolescents and young adults. (See Appendix E)
NEW MEXICO HEALTH CARE CONSENT LAWS
The age of majority in New Mexico is 18; anyone younger than age 18 is legally a minor. Young adults age 18 or
older are allowed to consent for their own health care; their right to consent may be limited if they are
cognitively impaired and unable to give informed consent. For adolescents who are minors, the consent of a
parent or another authorized adult is generally required; even when parent consent is legally required, obtaining
the assent of the minor is desirable for ethical and clinical reasons. There are many exceptions to this
requirement contained in New Mexico’s “minor consent laws.” (See Table 1 and Appendix A)
Minor Consent Laws in New Mexico
New Mexico has laws authorizing some minors to consent for
health care based on their status. These laws allow
emancipated minors to consent for their own care;
17
minors
who are on active military service are considered
emancipated.
18
Married minors and minor parents may consent
to their own care.
19
New Mexico also allows minors who are
living apart from their parents to consent for health care.
20
Minors who are not explicitly authorized to consent for all of
their own care based on their status may nevertheless be able
to do so for specific services. (See Table 1 and Appendix A)
New Mexico has several laws either allowing minors to receive certain services without prior parental consent or
authorizing them to consent for specific health care services, including some preventive services. In particular
Confidentiality is not absolute
Confidential information must be disclosed:
▪ To comply with reporting mandates
• Child abuse
• Communicable disease
• Assaults such as knife or gunshot wounds
• Domestic violence
▪ When a patient is dangerous to self or others
Linkage of consent & confidentiality
“Consent” & “confidentiality” are not
perfectly matched but are closely linked in:
▪ Clinical practice
▪ Ethical standards
▪ Professional policies
▪ State & federal laws
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
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Center for Adolescent Health & the Law
March 2019
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these laws cover emergency care; contraception and family planning services; prenatal, delivery, and postnatal
care; STD care; HIV testing; substance abuse treatment; and mental health services, other than aversive
interventions, but including psychotropic medications.
21
Minors may also access emergency contraception
without parental consent.
22
Parental consent or notification is not required for minors seeking abortion.
23
New
Mexico law also provides for “expedited partner therapy” or EPT that allows STD prescription to a patient’s
partner.
24
(See Table 1 and Appendix A)
Physicians are not liable for relying on the representations of minors that they are eligible to give consent
because they are emancipated, married, or the parents of a child.
25
Parents are not financially liable for services
for which the minor consented unless the parent also consented.
26
(See Table 1 and Appendix A)
Minors in Special Situations
Some adolescent minors are in special situations or have health care needs that are not clearly addressed by the
New Mexico minor consent laws. These include, for example, adolescents who are victims of sexual assault or
human trafficking, or LGBTQ youth. Even though the state’s minor consent laws do not explicitly provide for
these adolescents to consent for specific services such as care for sexual assault or transgender services, they
are able to consent—on the same basis as any other minor—for other services that are covered by the minor
consent laws or other laws, such as care for STDs and HIV, contraception, substance abuse services, and mental
health treatment. Often these services are relevant to their special situations.
When adolescents are in foster care, special rules may determine who can give consent for their health care—
their parents, the court, their social worker, or another adult.
27
In New Mexico, these rules vary depending on
specific circumstances. For example, in certain situations, caregivers other than parents may be able to execute
a “caregiver’s authorization affidavit” that allows them to secure medical care for the minor child.
28
However,
foster children also should be able to consent for their own health care on the same basis as other youth.
NEW MEXICO CONFIDENTIALITY LAWS
New Mexico laws include protections for the health care information of individuals of all ages, including minor
adolescents and young adults. New Mexico laws generally provide confidentiality protection for medical records
and patients’ health information and usually require consent for release of the records or disclosure of the
information subject to certain exceptions. New Mexico law incorporates the federal HIPAA Privacy Rule for
disclosure of protected health information, but also includes stronger protections. New Mexico laws also contain
provisions that are specific to the confidentiality of minors’ health information, particularly with respect to
parents’ access to that information. (See Tables 1, 2, & 3, and Appendix A)
Confidentiality Laws for Minors in New Mexico
Confidentiality protections and consent requirements for minors are closely linked but not perfectly matched.
Generally, when minors may consent for their own health care they can expect confidentiality protection, but
there are exceptions. The New Mexico laws that allow minors to consent for their own health care also grant
them rights with respect to access and disclosure of the information and records pertaining to that care. New
Mexico law specifies that although parents are generally the personal representatives of their minor children
with respect to protected health information, they do not have that status if the minor has not requested that
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
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Center for Adolescent Health & the Law
March 2019
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they be the personal representative. (See Table 1 and Appendix A) However, confidentiality may be
compromised via billing and health insurance claims and by practices such as telephone notification from
pharmacies for prescription medication pick-up, as well as through access to electronic health records via web
portals. (See Appendix E)
One of the main exceptions to confidentiality is the requirement to report child abuse. In New Mexico, every
person who knows or reasonably suspects that a child has been abused is required to make a report. The New
Mexico definition of reportable abuse includes a broad range of physical, emotional, and sexual harms due to
the action or inaction of a parent. (See Table 2 and Appendix A)
A question that often arises for health care professionals is whether voluntary sexual activity of minor
adolescents must be reported as child abuse. This complex question has been carefully addressed elsewhere
and is beyond the scope of this guide,
29
but careful attention to the requirements of state reporting laws is
always essential. A related concern of health care professionals is the age at which minors can participate in
sexual activity without risk of criminal prosecution—sometimes referred to as “age of consent.” This issue is
legally separate from the requirement to report child abuse and a detailed discussion also is beyond the scope of
this guide.
30
These New Mexico laws must be interpreted and applied in the context of the full range of federal laws that
protect confidentiality and sometimes supersede state laws. (See Tables 2 and 3 and Appendix B) Important
federal confidentiality laws include the HIPAA Privacy Rule, as well as legal requirements for numerous federally
funded health programs. Because the HIPAA Privacy Rule defers to state laws and other applicable laws on the
question of when parents have access to their adolescent minor children’s health information, understanding
the relationship between state and federal laws is essential.
FEDERAL CONFIDENTIALITY LAWS
Numerous federal laws contain confidentiality protections. These laws protect patients’ privacy in the health
care system and the confidentiality of their health information. Federal confidentiality laws that are of particular
importance for adolescent and young adult
health care include the HIPAA Privacy Rule
and FERPA, as well as statutes and
regulations for the Title X Family Planning
Program and Medicaid, and the rules for
drug and alcohol—“substance use
disorder”—programs. Confidentiality
protections can also be found in
requirements for other programs such as
the Ryan White HIV/AIDS Program and
federally qualified health centers (FQHCs).
(See Tables 2 and 3 and Appendix B)
Legal sources of confidentiality protection
▪ Constitutional right of privacy
▪ HIPAA Privacy Rule
▪ Federal education privacy laws
▪ Federal & state funded health program requirements
▪ State minor consent laws
▪ State medical confidentiality & medical records laws
▪ Evidentiary privileges
▪ Professional licensing laws
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
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March 2019
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HIPAA Privacy Rule
The HIPAA Privacy Rule—the federal medical confidentiality regulations issued in 2002 under the Health
Insurance Portability and Accountability Act—protects the health care information of adolescents and young
adults.
31
The HIPAA privacy protections for young adults are the same as for other adults: they are entitled to
access their protected health information and to control the disclosure of that information in some
circumstances. Additional specific requirements apply to the information of adolescents who are minors.
When minors are authorized to consent for their own health care and do so, the HIPAA Privacy Rule treats them
as “individuals” who are able to exercise rights over their own protected health information (PHI).
32
Also, when
parents have acceded to a confidentiality agreement between a minor and a health professional, the minor is
considered an “individual” under the Rule.
33
Generally, the HIPAA Privacy Rule treats parents as the “authorized representative” and gives them access to the
health information of their unemancipated minor children, including adolescents. Parents’ access is limited in
situations that involve abuse or endangerment or when it would not be in the minor’s best interest.
34
However,
when minors are considered “individuals,” their parents are not necessarily their authorized representative. On
the issue of when parents may have access to protected health information for minors who are considered
“individuals” and who have consented to their own care, the Rule defers to other laws. Parents’ access to their
adolescent minor child’s information in these circumstances depends on “state or other law.”
35
Thus, a health care provider must look to state laws or other laws to determine whether they specifically
address the confidentiality or disclosure of a minor’s health information. State or other laws that explicitly
require, permit, or prohibit disclosure of information to a parent are controlling.
36
If state or other laws are silent
on the question of parents’ access, a health care professional exercising professional judgment has discretion to
determine whether or not to grant access.
37
The relevant sources of state or other law that a health care
provider must consider include all of the state and federal laws that contain confidentiality protections.
Additional provisions of the HIPAA Privacy Rule that are important for both adolescents and young adults are
those that allow individuals to request restrictions on the disclosure of their PHI and to request that
communications regarding their PHI occur in a confidential manner.
38
Other protections address situations in
which disclosure may be restricted to protect individuals who may be at risk for domestic violence or child
abuse.
39
FERPA
When health care services are provided in a school setting, the legal framework for consent to treatment for
adolescents remains generally the same as in other settings; however, different confidentiality rules may apply.
In a school setting, the HIPAA Privacy Rule requirements must be understood in relation to the requirements of
the Family Educational Rights and Privacy Act (FERPA), a federal statute that, with its implementing regulations,
controls the disclosure of the educational records of students at most primary, secondary, and post-secondary
schools.
40
Health care professionals who provide services in schools often are uncertain whether they must
follow the HIPAA Privacy Rule or FERPA. Two federal agencies—the Department of Health & Human Services and
the Department of Education—have issued joint guidance that provides some clarification.
41
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
Adolescent & Young Adult Health National Resource Center
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March 2019
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While the HIPAA Privacy Rule typically controls release of health information created by health care
professionals, the HIPAA Privacy rule explicitly excludes from its purview health records that are part of an
“education record” as that is defined under FERPA.
42
FERPA defines “education record” in a way that sometimes
can include health records created by a health care provider—such as a school nurse—employed by or acting on
behalf of a school or university.
Thus, health records created by medical professionals employed by a school or university may be part of an
“education record” and subject to FERPA rather than HIPAA. The most important implication of this is that
parents have access to the education records of their minor children. Young adults, beginning at age 18, control
access to their own education records under FERPA, including any health information. Health records created by
medical professionals working in a school setting such as a school-based health center (SBHC) but employed by a
health entity would usually be covered by HIPAA, not FERPA. Nevertheless, the issues involving education
records, school health records, and the medical records of SBHCs are complex in terms of who has access and
who controls disclosure; determinations in individual situations depend on a careful analysis of interaction of
FERPA and HIPAA as well as other federal and state laws.
43
Title X Family Planning
The confidentiality regulations for the federal Title X Family Planning Program
44
are exceptionally strong and
have protected adolescents as well as adults for nearly five decades. Federal Title X confidentiality protections
take precedence over state requirements for parental consent or notification, allowing minors to receive family
planning services at Title X sites without parental involvement.
45
The regulations require that all information
about individuals receiving services must be confidential and must not be disclosed without the individual's
documented consent, except as necessary to provide services to the patient or as required by law—and, even
then, only with appropriate safeguards for confidentiality.
46
When information is shared by Title X providers with
other health care providers, care must be taken to understand the extent to which those other providers are
bound by similar confidentiality requirements. Examples of disclosures that are often required by law include
mandatory reporting of child abuse to child welfare or law enforcement,
47
intimate partner violence to law
enforcement,
48
and STDs to public health authorities.
49
In each of these situations, other specific confidentiality
rules may apply.
On March 4, 2019 the U.S. Department of Health and Human Services published a final rule, “Compliance with
Statutory Program Integrity Requirements,” that would significantly alter the federal regulations for the Title X
Program.
50
This guide does not discuss the changes that would result from implementation of the new rule.
Detailed analysis of the rule and updates on its status are available elsewhere.
51
The new rule has been
challenged in numerous lawsuits.
52
Medicaid
Federal Medicaid law contains safeguards against disclosure of confidential information.
53
It also requires that
Medicaid cover family planning “services and supplies” for all Medicaid enrollees of childbearing age, including
“minors who can be considered to be sexually active.
54
These protections have been interpreted to provide
significant protection for confidential access to family planning services for minors.
55
State laws and policies also
contain varied provisions that help to protect the privacy of Medicaid beneficiaries and their confidential health
information. These provisions include both general confidentiality requirements and specific confidentiality
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
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March 2019
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protections for information related to family planning services, such as through states’ Medicaid family planning
expansions that include coverage for minors as well as young adults.
56
Drug and Alcohol Programs
Federal regulations—contained in 42 CFR Part 2 and often referred to as “Part 2” establish special confidentiality
protections for substance use records;
57
,
58
they apply to “substance use disorder programs” that meet certain
very broad criteria of being “federally assisted.”
59
The regulations protect both adolescent minors and young
adults. When minors are allowed to consent for treatment under state law, they have independent rights under
the federal regulations.
60
For those providers and programs that must comply with the federal rules, the
regulations impose strict confidentiality requirements that do not allow disclosure without the consent of the
patient except in specific circumstances that pose a substantial threat to the life or physical wellbeing of the
patient or another person.
61
To the extent that these federal regulations are more protective of confidentiality,
they take precedence over state law; if they are less protective, state law controls.
62
Ryan White HIV/AIDS Program
The Ryan White HIV/AIDS Program (Ryan White) supports some medical services for patients with HIV.
63
Ryan
White generally is a payer of last resort and fills the gaps for individuals with HIV who have no other source of
coverage or face coverage limits. Ryan White service providers and patients have significant concerns about
confidentiality, but like other federal funding programs such as Title X, the Ryan White law includes strong and
explicit confidentiality protections.
64
Federally Qualified Health Centers
Federally qualified health centers (FQHCs) funded under Section 330 of the Public Health Service Act,
65
also
frequently referred to as “community health centers,” often provide services for adolescents and young adults.
For example, some FQHCs operate school-based health centers. FQHCs also are required to provide preventive
health services, including voluntary family planning services and many of the preventive services recommended
for adolescents and young adults;
66
and some FQHCs receive Title X funds to help provide family planning
services. FQHCs are required to maintain the confidentiality of patient records
67
and, if they receive Title X
Family Planning funds, to comply with Title X confidentiality regulations. The confidentiality regulation for
FQHCs
68
contains language almost identical to the Title X confidentiality regulations.
69
CONFIDENTIALITY AND PREVENTIVE SERVICES
The U.S. Preventive Services Task Force (USPSTF) and Bright Futures have issued recommendations for
preventive services for adolescents and young adults. In each category, the specific services recommended by
the USPSTF vary for adolescents and for young adults; in Bright Futures the recommendations are for ages 11-
21. The AYAH National Resource Center has issued a fact sheet on “Evidence-Based Clinical Preventive Services
for Adolescents and Young Adults” that sets out the specific services recommended for the different age groups
in each category.
70
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Many of the preventive services recommended for adolescents and young adults fall into categories about
which young people have privacy concerns. These include at least some services in all recommended areas of
prevention. Sometimes the privacy concerns are associated with a visit for a specific purpose, such as family
planning; on other occasions concerns about confidentiality arise when sensitive issues, such as STDs, HIV, or
substance use, are addressed during a well visit.
Not all preventive services raise heightened privacy concerns for adolescents and young adults; but when they
do, it is important to understand when confidentiality can—and when it cannot—be assured. For young adults,
who are able to consent to their own care and are entitled to the same confidentiality protections as other
adults, any preventive health service they receive should be treated as confidential, meaning that information
usually should not be disclosed to parents or others without their permission. For minor adolescents, if they are
allowed to consent for their own care under the New Mexico minor consent laws, they can usually expect
confidentiality, subject to any disclosures that are specifically permitted or required by law. For both
adolescents and young adults, other legal and ethical disclosure obligations, such as when a patient is dangerous
to self or others, must be considered. There are no specific confidentiality requirements for preventive services;
the extent of confidentiality protection depends on the service as well as the age and other characteristics of the
young person.
CONCLUSION
Confidentiality in adolescent and young adult health care is an important element in protecting the health of
individual young people and the public health. Decades of research have found that privacy protection
encourages young people to seek essential health care and speak openly with their health care providers. Many
state and federal laws as well as ethical guidelines require confidentiality protection and support the rights of
adolescents and young adults to receive confidential health care including many preventive health services.
Recommended preventive services for adolescents & young adults
The U.S. Preventive Services Task Force (USPSTF) and Bright Futures have recommended clinical
preventive services for adolescents and young adults in each of these categories:
▪ substance use
▪ sexual and reproductive health
▪ mental health
▪ nutrition and exercise
▪ immunizations
▪ safety and violence
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TABLE 1: NEW MEXICO HEALTH CARE CONSENT LAWS FOR MINORS
*
New Mexico Minor Consent Laws Based on Status
Status
Minor
Consent
Scope/Limitations
Citations
Age of majority
†
< 18 – No >
18 – Yes
Age of majority is 18
N.M. Stat. Ann. § 28-6-1
Emancipated
minor
Yes
Emancipated minor may consent for hospital, medical, surgical,
dental, or psychiatric care
N.M. Stat. Ann. § 24-10-1;
N.M. Stat. Ann. § 32A-21-5
Minor Living Apart
Yes
Unemancipated minor age 14 or older with capacity to consent
living apart from parent or legal guardian may consent to
medically necessary health care
N.M. Stat. Ann. § 24-7A-6.2
Married minor
Yes
Minor age 16 or older who is or has been married may consent
for hospital, medical, or surgical care
N.M. Stat. Ann. § 24-10-1
Minor parent
Yes
Minor age 14 or older with capacity to consent who is a parent
may consent to medically necessary health care
N.M. Stat. Ann. § 24-7A-6.2
Minor in military
Yes
Minor age 16 or older on active military duty is emancipated
N.M. Stat. Ann. § 32A-21-3
New Mexico Minor Consent Laws Based on Services
Service
Minor
Consent
Scope/Limitations
Citations
Emergency
services
Consent by
person
other than
parent
When minor needs immediate emergency hospitalization,
medical attention, or surgery & parents cannot be located after
reasonable efforts, any person standing in lieu of parents may
consent
N.M. Stat. Ann. § 24-10-2
Contraceptives/
family planning
Yes
State or local government or any health facility furnishing family
planning services shall nor subject any person to any standard or
requirement as a prerequisite to the receipt of family planning
service except in specified circumstances not related to age
(Note: See Table 2 re Title X Family Planning)
N.M. Stat. Ann. § 24-8-5
Pregnancy care
Yes
Minor may consent for examination and diagnosis for pregnancy
and for prenatal, delivery, and postnatal care
N.M. Stat. Ann. § 24-1-13;
N.M. Stat. Ann. § 24-1-13.1
STI care
yes
Minor may consent for examination & treatment for any STI;
counseling & referral must be provided to individuals with
positive test result
N.M. Stat. Ann. § 24-1-9;
N.M Stat. Ann. § 24-1-9.3
HIV testing
yes
Minor may give informed consent for an HIV test; counseling &
referral must be provided to individuals with positive test result
N.M. Stat. Ann. §§ 24-2B-2,
24-2B-3, 24-2B-4
Mental health &
substance abuse
services > age 14
Yes
Minor age 14 or older with capacity to consent may consent to
treatment including psychotropic drugs but not including aversive
interventions or special ed services; capacity is presumed &
determination of lack of capacity must be made by two clinicians
N.M. Stat. Ann. § 32A-6A-15;
N.M. Stat. Ann. § 32A-6A-16
Mental health &
substance abuse
services < age 14
Yes, with
limitations
Minor under age 14 may consent to initial assessment & verbal
therapy for 2 weeks
N.M. Stat. Ann. § 32A-6A-14
Residential mental
health & substance
abuse treatment
Yes, with
limitations
Specific consent rules govern voluntary & involuntary placement
of minors in residential treatment facilities; separate rules apply
to minors under age 14 & minors age 14 or older
N.M. Stat. Ann. § 32A-6A-20
N.M. Stat. Ann. § 32A-6A-21
N.M. Stat. Ann. § 32A-6A-22
*
This table contains only brief summary information about the laws; more detailed information and selected excerpts of the laws are
contained in Appendix A.
†
Parent consent is generally required for minors under age 18 unless one of the exceptions in the minor consent laws apply; young
adults age 18 or older generally may consent for themselves.
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TABLE 2: NEW MEXICO & FEDERAL CONFIDENTIALITY LAWS FOR MINORS
*
New Mexico Confidentiality Laws for Minors
Scope of Protection/Limitations
Citations
Mental health & substance
abuse information – access
Minor may access own confidential mental health & substance abuse
information unless treating professional believes disclosure would not be
in minor’s best interest
N.M. Stat. Ann. § 32A-6A-
24
Mental health & substance
abuse information –
disclosure
Consent of minor age 14 or older required for disclosure of confidential
mental health & substance abuse information; minor age 14 or older
authorized to consent for disclosure; custodian of minor younger than
age 14 authorized to consent for disclosure on behalf of minor; specific
exceptions allow disclosure without consent of minor or custodian
N.M. Stat. Ann. § 32A-6A-
24
Parent as personal
representative
Consistent with HIPAA, if minor authorized to consent for health care the
minor has a right to determine whether parent is personal
representative with access to minor’s protected health information
N.M. Admin. Code §
8.8.5.12
Disclosure – STI & HIV test
results
Identity of person tested for STI or HIV & test results shall only be
disclosed to subject of test or legally authorized representative,
guardian, or custodian (which could include parent);
N.M. Stat. Ann. § 24-1-9.4
N.M. Stat. Ann. § 24-2B-6
Disclosure - psychotropic
drugs
If minor age 14 or older gives consent for administration of psychotropic
drugs clinician must inform legal custodian of minor
N.M. Stat. Ann. § 32A-6A-
15
Child abuse reporting
Every person, including health care professionals, who knows or suspects
that a child has been abused due to action or inaction of parent must
report to law enforcement or department of children, youth, & families
N.M. Stat. Ann. § 32A-4-2
N.M. Stat. Ann. § 32A-4-3
Federal Confidentiality Laws for Minors
Scope of Protection/Limitations
Citations
HIPAA Privacy Rule – minor
as individual
Minor who consents, or whose parent accedes to confidentiality, is an
“individual” with control over their own protected health information
(PHI)
45 C.F.R. § 164.502(g)(3)
HIPAA Privacy Rule – parent
as personal representative
Parent not necessarily the personal representative when minors have
consented to their own care; parent may not be personal representative
if minor subject to domestic violence, abuse, neglect, or endangerment
45 C.F.R. § 164.502(g)(3)
and (5)
HIPAA Privacy Rule –
parents’ access
Parents’ access to PHI when minor is the “individual” depends on other
state and federal laws; parent’s access may be denied if health care
professional determines It would cause substantial harm to minor or
another individual
45 C.F.R.
§§ 164.502(g)(3),
164.524(a)(3)(iii)
FERPA
Information about health services provided by a school may be included
in a students’ “education records” and subject to FERPA, not HIPAA;
parents have access to minors’ education records
20 U.S.C §1232g,
34 C.F.R. Part 99;
45 C.F.R. § 160.103
Title X Family Planning
Information about family planning services received at Title X funded
sites is confidential and may only be disclosed with the minor’s
permission or if required by law
42 C.F.R. § 59.11
Medicaid
Adolescent minors who are eligible for Medicaid may receive
confidential family planning services funded by Medicaid
42 U.S.C. §§ 1396a(a)(7),
1396d(a)(4)(C)
Drug & alcohol—
“substance use disorder”—
programs
In federally assisted programs, consent for disclosure must be obtained
from minor who is authorized under state law to consent for alcohol or
drug abuse treatment; disclosure to parents may occur only if minor
lacks capacity for rational choice due to extreme youth, physical
incapacity, or substantial threat to minor or another
42 C.F.R. § 2.14
*
This table includes information about selected state and federal confidentiality laws that pertain to minors’ health information. It contains only brief
summary information about the laws; more detailed information is included in Appendix A and Appendix B. This table includes laws that are specific to
minors; additional laws that are relevant for adults and minors are included in Table 3.
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TABLE 3: NEW MEXICO & FEDERAL CONFIDENTIALITY LAWS FOR YOUNG ADULTS
*
New Mexico Confidentiality Laws for Young Adults
Scope of Protection/Limitations
Citation
Health Information
All health information that relates to and identifies specific
individuals as patients is strictly confidential
N.M. Stat. Ann. § 14-6-1
Electronic medical records
Consent of individual required for disclosure Information in
individual’s electronic medical record except as allowed by state or
federal law
N.M. Stat. Ann. § 24-14B-6
Health maintenance
organizations
Information pertaining to diagnosis, treatment or health of any
enrollee or applicant shall be confidential and shall not be disclosed
by HMO, subject to specific exceptions
N.M. Stat. Ann. § 59A-46-27
Medicaid providers
Medicaid providers are required to comply with HIPAA privacy
regulations
N.M. Admin. Code §
8.302.1.18
STI & HIV test results
STI & HIV test results are confidential & may only be disclosed to
patient, subject to specific exceptions
N.M. Stat. Ann. § 24-1-9.4
N.M. Stat. Ann. § 24-2B-6
Psychologists
Psychologists must safeguard confidential information & inform
patients of limits to confidentiality; confidential information may
only be disclosed without written consent to protect against
substantial & imminent risk of serious harm by patient to self or
others, subject to specific exceptions
N.M. Admin. Code §
16.22.2.12
Counselors & therapists
Counselors & therapists are required to safeguard confidential
information
N.M. Admin. Code §§
16.27.18.15, 16.27.18.17
Mental health/developmental
disabilities information
Authorization of patient in a residential treatment facility is
required for disclosure of confidential information, subject to
specific exceptions
N.M. Stat. Ann. § 43-1-19
Health care information –
advance directive
A person authorized to make health care decisions has access to
and control over medical & health care information
N.M. Stat. Ann. § 24-7B-10
Federal Confidentiality Laws for Young Adults
Scope of Protection/Limitations
Citation
HIPAA Privacy Rule - generally
Individuals have access to and some control over disclosure of their
own protected health information (PHI)
45 C.F.R. §§ 502, 524, 528
HIPAA Privacy Rule – special
confidentiality protections
Individuals may request restrictions on the disclosure of their PHI
and that communications regarding their PHI occur in a confidential
manner
45 C.F.R. §§ 164.502(h),
164.522(a)(1), and
164.522(b)(1)
FERPA
Information about health services provided by a school may be
included in a students’ “education records” and subject to FERPA,
not HIPAA; parents do not have access to education records of
young adults age 18 and older
20 U.S.C §1232g,
34 C.F.R. Part 99;
45 C.F.R. § 160.103
Title X Family Planning
Information about family planning services received at Title X
funded sites is confidential and may only be disclosed with the
patient’s permission or if required by law
42 C.F.R. § 59.11
Medicaid
State Medicaid plans are required to include protections for
confidentiality of applicants’ and enrollees’ information
42 U.S.C. § 1396a(a)(7)
Drug & alcohol—“substance
use disorder”—programs
Consent for disclosure must be obtained from an individual who
seeks treatment from a substance abuse disorder provider or
program; disclosure without patient’s consent may occur only in
very limited circumstances such as bona fide medical emergencies
or with a court order
42 C.F.R. Part 2
*
This table includes information about selected state and federal confidentiality laws that pertain to young adults’ health information. It
contains only brief summary information about the laws; more detailed information is included in Appendix B.
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APPENDIX A: NEW MEXICO CONSENT & CONFIDENTIALITY LAWS FOR MINORS
This appendix contains brief summaries of New Mexico consent and confidentiality laws that apply to health
services received by minors.
Minor Consent Based on Status
Age of Majority
N.M. Stat. Ann. § 28-6-1
The age of majority in New Mexico is 18.
Emancipated Minor
N.M. Stat. Ann. § 24-10-1
Any emancipated minor may consent for hospital, medical, and surgical care.
N.M. Stat. Ann. § 32A-21-5
An emancipated minor may consent for medical, dental, or psychiatric care without parental consent,
knowledge or liability.
N.M. Stat. Ann. §§ 32A-21-3 and 32A-21-4
These statutes contain the criteria for a minor age 16 or older to become emancipated.
Minor Living Apart from Parents
N.M. Stat. Ann. § 24-7A-6.2
An unemancipated minor age 14 or older with the capacity to consent who is living apart from his or her parent
or legal guardian may consent to medically necessary health care, including clinical and rehabilitative, physical,
mental or behavioral health services.
Married Minor
N.M. Stat. Ann. § 24-10-1
A minor age 16 or older who is or has been married may consent for hospital, medical or surgical care.
Minor Parent
N.M. Stat. Ann. § 24-7A-6.2
An unemancipated minor age 14 or older who is a parent may consent to medically necessary health care,
including clinical and rehabilitative, physical, mental or behavioral health services.
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Minor in the Military
N.M. Stat. Ann. § 32A-21-3
A minor age 16 or older who is on active duty with the U.S. Armed Forces is emancipated and would therefore
be able to consent for their medical care on the same basis as other emancipated minors.
Minor Consent Based on Services
Emergency Services
N.M. Stat. Ann. § 24-10-2
In cases of emergency when a minor needs immediate hospitalization, medical attention, or surgery and the
parents cannot be located after reasonable efforts, any person standing in lieu of the parents may consent for
the emergency attention.
Contraception/Family Planning
N.M. Stat. Ann. § 24-8-5
Neither the state nor local government nor any health facility furnishing family planning services shall subject
any person to any standard or requirement as a prerequisite to the receipt of any requested family planning
service except in specified circumstances not related to age.
Note: Under FDA rules for emergency contraception, Plan B and its generic equivalents are available “over the
counter” without a prescription for individuals of any age; Ella is available with a prescription.
71
Pregnancy Related Care
N.M. Stat. Ann. § 24-1-13
A may consent for an examination and diagnosis by a licensed physician for pregnancy.
N.M. Stat. Ann. § 24-1-13.1
A female minor may consent for prenatal, delivery and postnatal care by a licensed health care provider.
Note: As of March 2019, parental consent or notification is not required for a minor to receive an abortion in
New Mexico. A prior law requiring parental consent was permanently enjoined by the court and subsequent bills
that have been introduced have not been enacted.
72
STI
N.M. Stat. Ann. § 24-1-9
A minor may consent for an examination and treatment by a licensed physician for any sexually transmitted
infection.
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N.M Stat. Ann. § 24-1-9.3
A positive test result for a sexually transmitted infection shall not be revealed to the person upon whom the test
was performed without the person performing the test, or the health facility at which the test was performed,
providing or referring that person for individual counseling. Counseling shall include information about the
meaning of the test results, the possible need for additional testing, the availability of appropriate health care
services, including mental health care, social and support services, and the benefits of locating and counseling
any individual by whom the infected person may have been exposed to the sexually transmitted disease and any
individual whom the infected person may have exposed to the sexually transmitted disease.
HIV and AIDS
N.M. Stat. Ann. § 24-2B-2
Informed consent of individual tested for HIV is required subject to specific exceptions.
N.M. Stat. Ann. § 24-2B-3
A minor may give informed consent for an HIV test.
N.M. Stat. Ann. § 24-2B-4
A positive test result shall not be revealed to the subject of the test without the health care provider referring
the test subject for individual counseling about the meaning of the test results, the need for additional testing,
the availability of health care services (including mental health care), and the benefits of informing other
exposed parties.
Behavioral Health Services for Mental Health & Substance Abuse
N.M. Stat. Ann. § 32A-6A-14
A minor under age 14 may initiate and consent to an initial assessment with a clinician and for medically
necessary early intervention verbal therapy services for two calendar weeks prior to obtaining parental consent.
N.M. Stat. Ann. § 32A-6A-15
A minor age 14 or older with the capacity to consent may consent, without the consent of a legal custodian, to
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. The right to consent also does not include special education services under federal law.
A minor age 14 or older with the capacity to consent may give informed consent for the administration of
psychotropic drugs, but the clinician shall inform the legal custodian of the child 14 or older.
N.M. Stat. Ann. §§ 32A-6A-1 – 32A-6A-30
Detailed rules govern voluntary and involuntary placement of minors in residential treatment facilities; separate
rules apply to minors under age 14 & minors age 14 or older.
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Confidentiality & Disclosure
Disclosure to Parents
N.M. Admin. Code § 8.8.5.7
Under regulations of the Department of Children, Youth, and Families, a parent, guardian, or other person
acting in loco parentis is authorized as an unemancipated minor’s personal representative regarding the
inspection and copying of the minor’s protected health information.
N.M. Admin. Code § 8.8.5.12
Under regulations of the Department of Children, Youth, and Families, if a patient is an unemancipated
minor but is authorized to give lawful consent to health care without consent of the minor’s personal
representative, and the minor has not requested that the person be treated as the minor’s personal
representative, or the personal representative has assented to agreement of confidentiality between the
Children, Youth, and Families Department and the minor, then the Department will not treat a parent,
guardian, or other person acting in loco parentis as the minor’s personal representative.
Note: N.M. Admin. Code § 8.8.5.6 provides that the objective of both of these regulations is to be in
compliance with HIPAA.
N.M. Stat. Ann. § 32A-6A-15
A minor 14 or older may give informed consent for the administration of psychotropic drugs, but the
clinician shall inform the legal custodian of the minor.
N.M. Stat. Ann. § 24-1-9.4
Except in situations of the testing of criminal sex offenders, the identity of a person tested for a sexually
transmitted infection or the results of the test shall not be disclosed in a manner that permits
identification of the subject of the test, except to the subject of the test or the subject's legally authorized
representative, guardian or legal custodian. Note: Under the HIPAA Privacy Rule a parent is not
necessarily the authorized representative of a minor when the minor has consented to the health care.
Medical Records
N.M. Stat. Ann. § 32A-6A-24
A minor has a right of access to his or her confidential mental health or developmental information unless
the treating professional believes disclosure would not be in the child’s best interest. The legal custodian
of a child under 14 years of age who is receiving services in a mental health or developmental disabilities
facility has a right to authorize disclosure of records on the minor’s behalf.
N.M. Stat. Ann. § 32A-6A-24
A minor age 14 or older with the capacity to consent to disclosure of medical information shall have the
right to authorize disclosure of mental health or habilitation records. The child’s authorization is not
required when disclosure to a primary caregiver is essential for treatment of the child, and the disclosure
is only of information necessary for the continuation of the child’s treatment.
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Physician Liability
Good Faith Reliance
N.M. Stat. Ann. § 24-7A-6.2
A health care provider or institution shall not be held liable for reasonably relying on statements made by
an unemancipated minor that he or she is eligible to give consent pursuant to N.M. Stat. Ann. § 24-7A-
6.2(A) (i.e. that the minor is 14 or older and living apart from his or her parents or is the parent of a child).
Financial Responsibility
Parent Liability
N.M. Stat. Ann. § 24-7A-6.2
A parent or guardian of an unemancipated minor is not liable for payment for medically necessary health care
services rendered to the minor for which the minor consented unless the parent or guardian consented to those
services. A parent or legal guardian shall still be held liable for payment for emergency health care provided to a
minor.
Child Abuse Reporting
Definitions
N.M. Stat. Ann. § 32A-4-2
Child abuse is defined to include serious harm because of the action or inaction of the child’s parent, guardian or
custodian; physical abuse, emotional abuse or psychological abuse inflicted or caused by the child's parent,
guardian or custodian; sexual abuse or sexual exploitation inflicted by the child's parent, guardian or custodian;
intentional or negligent endangerment of the child’s life or health by the parent, guardian or custodian; and
intentional torture or cruel confinement or punishment.
Required Reports
N.M. Stat. Ann. § 32A-4-3
Every person, including health care professionals, who knows or reasonably suspects that a child has been
abused is required to report to law enforcement or the department of children, youth, and families.
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APPENDIX B: FEDERAL CONFIDENTIALITY LAWS
This appendix contains brief summaries and excerpts of the text of selected federal statutes and regulations that
provide confidentiality protection for health information and services provided to adolescent minors and young
adults.
HIPAA Privacy Rule
The HIPAA Privacy Rule contains protections for both minors and young adults. In 45 C.F.R. § 160.502(g)(3) the
rule specifies when a minor is considered an individual who has rights with respect to their own protected
health information PHI and whose parent is not necessarily their personal representative with access to their
PHI. In 45 C.F.R. § 160.502(g)(5) the rule specifies when a parent is not necessarily the personal representative
of a minor due to abuse, neglect, domestic violence, or endangerment, or if it would not be in the minor’s best
interest. In 45 C.F.R. §§ 160.502(h) and 160.522 the rule specifies special confidentiality protections for
individuals: the right to request restrictions on disclosure of PHI; and the right to request confidential
communications.
45 C.F. R. § 160.502. Uses and disclosures of protected health information: general rules.
“. . . (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)(i) Implementation specification: 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
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:
(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;
(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
(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) 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 ß 164.524 to, protected
health information about an unemancipated minor to a parent, guardian, or other person acting in loco parentis;
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(B) If, and to the extent, prohibited 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 ß 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 ß 164.524 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.
. . .
(5) Implementation specification: Abuse, neglect, endangerment situations. Notwithstanding a State law or
any requirement of this paragraph to the contrary, a covered entity may elect not to treat a person as the
personal representative of an individual if:
(i) The covered entity has a reasonable belief that:
(A) The individual has been or may be subjected to domestic violence, abuse, or neglect by such person; or
(B) Treating such person as the personal representative could endanger the individual; and
(ii) The covered entity, in the exercise of professional judgment, decides that it is not in the best interest of
the individual to treat the person as the individual's personal representative.
(h) Standard: Confidential communications. A covered health care provider or health plan must comply with
the applicable requirements of ß 164.522(b) in communicating protected health information.
. . .”
45 C.F.R. § 164.522 Rights to request privacy protection for protected health information
“(a)(1) Standard: Right of an individual to request restriction of uses and disclosures. (i) A covered entity must
permit an individual to request that the covered entity restrict:
(A) Uses or disclosures of protected health information about the individual to carry out treatment,
payment, or health care operations; and
(B) Disclosures permitted under § 164.510(b).
(ii) Except as provided in paragraph (a)(1)(vi) of this section, a covered entity is not required to agree to a
restriction.
(iii) A covered entity that agrees to a restriction under paragraph (a)(1)(i) of this section may not use or
disclose protected health information in violation of such restriction, except that, if the individual who
requested the restriction is in need of emergency treatment and the restricted protected health information is
needed to provide the emergency treatment, the covered entity may use the restricted protected health
information, or may disclose such information to a health care provider, to provide such treatment to the
individual.
(iv) If restricted protected health information is disclosed to a health care provider for emergency treatment
under paragraph (a)(1)(iii) of this section, the covered entity must request that such health care provider not
further use or disclose the information.
(v) A restriction agreed to by a covered entity under paragraph (a) of this section, is not effective under this
subpart to prevent uses or disclosures permitted or required under §§ 164.502(a)(2)(ii), 164.510(a) or 164.512.
(vi) A covered entity must agree to the request of an individual to restrict disclosure of protected health
information about the individual to a health plan if:
(A) The disclosure is for the purpose of carrying out payment or health care operations and is not otherwise
required by law; and
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(B) The protected health information pertains solely to a health care item or service for which the
individual, or person other than the health plan on behalf of the individual, has paid the covered entity in full.
(2) Implementation specifications: Terminating a restriction. A covered entity may terminate a restriction,
if:
(i) The individual agrees to or requests the termination in writing;
(ii) The individual orally agrees to the termination and the oral agreement is documented; or
(iii) The covered entity informs the individual that it is terminating its agreement to a restriction, except that
such termination is:
(A) Not effective for protected health information restricted under paragraph (a)(1)(vi) of this section; and
(B) Only effective with respect to protected health information created or received after it has so informed
the individual.
(3) Implementation specification: Documentation. A covered entity must document a restriction in
accordance with § 160.530(j) of this subchapter.
(b)(1) Standard: Confidential communications requirements. (i) A covered health care provider must permit
individuals to request and must accommodate reasonable requests by individuals to receive communications of
protected health information from the covered health care provider by alternative means or at alternative
locations.
(ii) A health plan must permit individuals to request and must accommodate reasonable requests by
individuals to receive communications of protected health information from the health plan by alternative
means or at alternative locations, if the individual clearly states that the disclosure of all or part of that
information could endanger the individual.
(2) Implementation specifications: Conditions on providing confidential communications.
(i) A covered entity may require the individual to make a request for a confidential communication
described in paragraph (b)(1) of this section in writing.
(ii) A covered entity may condition the provision of a reasonable accommodation on:
(A) When appropriate, information as to how payment, if any, will be handled; and
(B) Specification of an alternative address or other method of contact.
(iii) A covered health care provider may not require an explanation from the individual as to the basis for
the request as a condition of providing communications on a confidential basis.
(iv) A health plan may require that a request contain a statement that disclosure of all or part of the
information to which the request pertains could endanger the individual.”
Title X Family Planning Services
42 C.F.R. § 59.11 – Confidentiality
“All information as to personal facts and circumstances obtained by the project staff about individuals receiving
services must be held confidential and must not be disclosed without the individual's documented consent,
except as may be necessary to provide services to the patient or as required by law, with appropriate safeguards
for confidentiality. Otherwise, information may be disclosed only in summary, statistical, or other form which
does not identify particular individuals.”
*
*
On March 4, 2019 the U.S. Department of Health and Human Services published a final rule, “Compliance with Statutory Program
Integrity Requirements,” that would significantly alter the federal regulations for the Title X Program.
*
This guide does not discuss the
changes that would result from implementation of the new rule. Detailed analysis of the rule and updates on its status are available
elsewhere. The new rule has been challenged in numerous lawsuits.
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Medicaid
42 U.S.C. § 1396a(a)(7)
State Medicaid plans are required to provide “safeguards for confidentiality for information concerning
applicants and recipients.” [Note: The section contains additional specific requirements and exceptions.]
42 U.S.C. § 1396d(a)(4)(C)
For purposes of the Medicaid program, this title [42 USCS §§ 1396 et seq.]--
“(a) Medical assistance. The term "medical assistance" means payment of part or all of the cost of the following
care and services . . .(4) . . . (C) family planning services and supplies furnished (directly or under arrangements
with others) to individuals of childbearing age (including minors who can be considered to be sexually active)
who are eligible under the State plan and who desire such services and supplies[.]”
Drug & Alcohol Programs
42 C.F.R. § 2.14. Minor patients
“(a) State law not requiring parental consent to treatment. If a minor patient acting alone has the legal capacity
under the applicable state law to apply for and obtain substance use disorder treatment, any written consent for
disclosure authorized under subpart C of this part may be given only by the minor patient. This restriction
includes, but is not limited to, any disclosure of patient identifying information to the parent or guardian of a
minor patient for the purpose of obtaining financial reimbursement. These regulations do not prohibit a part 2
program from refusing to provide treatment until the minor patient consents to the disclosure necessary to
obtain reimbursement, but refusal to provide treatment may be prohibited under a state or local law requiring
the program to furnish the service irrespective of ability to pay.
(b) State law requiring parental consent to treatment.
(1) Where state law requires consent of a parent, guardian, or other individual for a minor to obtain
treatment for a substance use disorder, any written consent for disclosure authorized under subpart C
of this part must be given by both the minor and their parent, guardian, or other individual authorized
under state law to act in the minor's behalf.
(2) Where state law requires parental consent to treatment, the fact of a minor's application for
treatment may be communicated to the minor's parent, guardian, or other individual authorized under
state law to act in the minor's behalf only if:
(i) The minor has given written consent to the disclosure in accordance with subpart C of this
part; or
(ii) The minor lacks the capacity to make a rational choice regarding such consent as judged by
the part 2 program director under paragraph (c) of this section.
(c) Minor applicant for services lacks capacity for rational choice. Facts relevant to reducing a substantial threat
to the life or physical well-being of the minor applicant or any other individual may be disclosed to the parent,
guardian, or other individual authorized under state law to act in the minor's behalf if the part 2 program
director judges that:
(1) A minor applicant for services lacks capacity because of extreme youthor mental or physical
condition to make a rational decision on whether to consent to a disclosure under subpart C of this part
to their parent, guardian, or other individual authorized under state law to act in the minor's behalf; and
(2) The minor applicant's situation poses a substantial threat to the life or physical well-being of the
minor applicant or any other individual which may be reduced by communicating relevant facts to the
minor's parent, guardian, or other individual authorized under state law to act in the minor's behalf.”
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APPENDIX C: KEY QUESTIONS FOR CONFIDENTIALITY PROTECTION
This appendix contains questions that are important to consider in order to determine whether an individual
young person in New Mexico can obtain a particular service confidentially. These questions are based on the
New Mexico and federal laws that establish consent requirements and confidentiality protections for adolescent
and young adult health services. Depending on the specific situation additional considerations, and laws not
discussed in this guide, may affect whether the young person may receive confidential services.
▪ Is the youth an adult or a minor?
➢ Young adults are generally able to consent for their own care and are entitled to the same
confidentiality protections as other adults.
➢ Minor adolescents may be able to consent for their own care based their status or the services they are
seeking; confidentiality protection may depend on whether they can consent for their own care, the
specific service they receive, where they receive the service, and the source of the payment.
▪ If the young person is a minor, what is their status?
➢ Emancipated
➢ Living apart from parents
➢ Married
➢ A parent
➢ Serving in military
▪ What service is the young person seeking?
➢ Emergency services
➢ Contraception
➢ STD services
➢ HIV/AIDS services
➢ Pregnancy care
➢ Mental health services
➢ Substance use/abuse services
➢ Immunizations
▪ Where is the service being provided?
➢ General medical office, health center, or hospital outpatient clinic
➢ Title X family planning health center
➢ Drug or alcohol—“substance use disorder”—treatment program
▪ What is the source of the payment?
➢ Private/commercial health insurance
➢ Self-pay
➢ Parent payment
➢ Medicaid
➢ Title X Family Planning Program
➢ New Mexico state funding
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APPENDIX D: LEGAL RESOURCES FOR ADOLESCENT & YOUNG ADULT HEALTH & THE LAW IN NEW
MEXICO
Corinne Wolf Children’s Law Center. New Mexico Child Welfare Handbook: A Legal Manual on Child Abuse and
Neglect. New Mexico Judicial Education Center, Institute of Public Law, UNM School of Law, 2014.
http://childlaw.unm.edu/resources/common/docs/2014-child-welfare-handbook.pdf.
English A, Ford C. The HIPAA Privacy Rule and adolescents: Legal and ethical questions multiply. Persp on Sexual
Reprod Health 2004; 36(2):80-86. https://www.guttmacher.org/journals/psrh/2004/hipaa-privacy-rule-and-
adolescents-legal-questions-and-clinical-challenges.
George Washington University, Hirsh Health Law and Policy Program. Health Information and the Law: Privacy &
Confidentiality in New Mexico. http://www.healthinfolaw.org/state-topics/32,63/f_states.
Legal Action Center. Substance Use: Confidentiality Resources. https://lac.org/resources/substance-use-
resources/confidentiality-resources/.
Morreale MC, Stinnett AJ, Dowling EC, eds. Policy Compendium on Confidential Health Services for Adolescents,
2d ed. Chapel Hill NC: Center for Adolescent Health & the Law, 2005.
http://www.cahl.org/PDFs/PolicyCompendium/PolicyCompendium.pdf.
Pegasus Legal Services for Children. Youth Law: Consent to Health Care. www.pegasuslaw.org.
Pegasus Legal Services for Children. Youth Law: Mental Health Rights. www.pegasuslaw.org.
U.S. Dep’t of Health & Human Services, Admin. for Children & Families. Child Welfare Information Gateway.
State Statutes Search: New Mexico. https://www.childwelfare.gov/topics/systemwide/laws-
policies/state/?CWIGFunctionsaction=statestatutes:main.getResults.
U.S. Dep’t of Health & Human Services, U.S. Dep’t of Education. Joint Guidance on the Application of the Federal
Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996
to Student Health Records. November 2008. https://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-
guidance.pdf.
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APPENDIX E: RESOURCES ON CONFIDENTIALITY, HEALTH INSURANCE, AND ELECTRONIC HEALTH RECORDS
Confidentiality & Insurance
Extensive resources on confidentiality and insurance were developed by the National Family Planning &
Reproductive Health Association as part of a three-year research project, Confidential & Covered. These
resources are available on the project’s website at https://www.confidentialandcovered.com/. The following
publications on that website specifically address legal and policy issues related to confidentiality and insurance:
English A, Summers R, Lewis J, Coleman C. Confidentiality, Third-Party Billing, & the Health Insurance
Claims Process: Implications for Title X (2015)
English A, Mulligan A, Coleman C. Protecting Patients’ Privacy in Health Insurance Billing & Claims: An
Illinois Profile (2017) [Note: Similar profiles were published for 5 other states studied as part of the
Confidential & Covered project: Maryland and Oregon in 2017; California, Colorado, and Washington in
2016]
Lewis J, Summers R, English A, Coleman C. Proactive Policies to Protect Patients in the Health Insurance
Claims Process (2015)
English A, Lewis J. Privacy Protection in Billing and Health Insurance Communications. AMA J Ethics 2016; Vol
18(3): 279-87
Burstein G et al. Confidentiality Protections for Adolescents and Young Adults in the Health Care Billing and
Insurance Claims Process: Position Paper of the Society for Adolescent Health & Medicine and American
Academy of Pediatrics. J Adolesc Health 2016;58:374-377.
Confidentiality & Electronic Health Records
AAP Committee on Adolescence. Policy Statement for Health Information Technology to Ensure Adolescent
Privacy. Pediatrics 2012;130(5): 987-990.
Anoshiravani A et al. Special Requirements for Electronic Medical Records in Adolescent Medicine. J Adolesc
Health 2012;51:409-41
Gray S et al. Recommendations for Electronic Health Record Use for Delivery of Adolescent Health Care: Position
Paper of the Society for Adolescent Health and Medicine. J Adolesc Health 2014;54:487-490.
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APPENDIX F: 25 YEARS OF AYAH CONFIDENTIALITY STUDIES—A BIBLIOGRAPHY
This appendix lists selected articles from the past 25 years that form an important part of the evidence base of
research findings supporting confidentiality in adolescent and young adult health care.
*
Adolescent and Young Adult Perspectives
Britto MT, Tivorsak TL, Slap GB. Adolescents’ needs for health care privacy. Pediatrics. 2010;126(6):e1469-e1476.
doi:10.1542/peds.2010-0389
Cheng TL, Savageau JA, Sattler AL, DeWitt TG. Confidentiality in health care: A survey of knowledge, perceptions,
and attitudes among high school students. JAMA. 1993;269(11):1404-1407.
doi:10.1001/jama.1993.03500110072038
Coker TR, Sareen HG, Chung PJ, Kennedy DP, Weidmer BA, Schuster MA. Improving access to and utilization of
adolescent preventive health care: The perspectives of adolescents and parents. J Adolesc Health.
2010;47(2):133-142. doi:10.1016/j.jadohealth.2010.01.005
Copen CE, Dittus PJ, Leichliter JS. Confidentiality concerns and sexual and reproductive health care among
adolescents and young adults aged 15-25. NCHS Data Brief. 2016(266):1-8.
https://www.cdc.gov/nchs/data/databriefs/db266.pdf
English A, Ford CA. Adolescent health, confidentiality in healthcare, and communication with parents. J Pediatr.
2018;199:11-13. doi:10.1016/j.jpeds.2018.04.029
Fisher CB, Fried AL, Desmond M, Macapagal K, Mustanski B. Perceived barriers to HIV prevention services for
transgender youth. LGBT Health. 2018;5(6):350-358. doi:10.1089/lgbt.2017.0098
Fisher CB, Fried AL, Puri LI, Macapagal K, Mustanski B. “Free testing and PrEP without outing myself to parents:”
Motivation to participate in oral and injectable PrEP clinical trials among adolescent men who have sex with
men. PLOS ONE. 2018;13(7):e0200560. doi:10.1371/journal.pone.0200560
Ford CA, Bearman PS, Moody J. Foregone health care among adolescents. JAMA. 1999;282(23):2227-2234.
doi:10.1001/jama.282.23.2227
Ford CA, Best D, Miller WC. Confidentiality and adolescents’ willingness to consent to sexually transmitted
disease testing. Arch Pediatr Adolesc Med. 2001;155(9):1072-1073. doi:10.1001/archpedi.155.9.1072
Ford CA, Jaccard J, Millstein SG, et al., Young adults’ attitudes, beliefs, and feelings about testing for curable
STDs outside of clinic settings,” J Adolesc Health 2004; 34: 266-269. doi: 10.1016/j.jadohealth.2003.07.013
*
Special thanks are extended to Carol A. Ford, MD, of Children’s Hospital of Philadelphia and to Justine Po of USCF for their assistance in
developing this appendix.
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Ford CA, Millstein SG, Halpern-Felsher BL, Irwin CE. Influence of physician confidentiality assurances on
adolescents’ willingness to disclose information and seek future health care: A randomized controlled trial.
JAMA. 1997;278(12):1029-1034. doi:10.1001/jama.1997.03550120089044
Fuentes L, Ingerick M, Jones R, Lindberg L. Adolescents’ and young adults’ reports of barriers to confidential
health care and receipt of contraceptive services. J Adolesc Health. 2018;62(1):36-43.
doi:10.1016/j.jadohealth.2017.10.011
Gilbert AL, McCord AL, Ouyang F, et al. Characteristics associated with confidential consultation for adolescents
in primary care. J Pediatr. 2018;199:79-84.e1. doi:10.1016/j.jpeds.2018.02.044
Gilbert AL, Rickert VI, Aalsma MC. Clinical conversations about health: The impact of confidentiality in preventive
adolescent care. J Adolesc Health. 2014;55(5):672-677. doi:10.1016/j.jadohealth.2014.05.016
Grilo SA, Catallozzi M, Santelli JS, et al. Confidentiality discussions and private time with a health-care provider
for youth, United States, 2016. J Adolesc Health. January 2019. doi:10.1016/j.jadohealth.2018.10.301
Jones RK, Purcell A, Singh S, Finer LB. Adolescents’ reports of parental knowledge of adolescents’ use of sexual
health services and their reactions to mandated parental notification for prescription contraception. JAMA.
2005;293(3):340-348. doi:10.1001/jama.293.3.340
Klostermann BK, Slap GB, Nebrig DM, Tivorsak TL, Britto MT. Earning trust and losing it: adolescents’ views on
trusting physicians. J Fam Pract. 2005;54(8):679-687. https://www.ncbi.nlm.nih.gov/pubmed/16061053
Lane MA, McCright J, Garrett K, Millstein SG, Bolan G, Ellen JM. Features of sexually transmitted disease services
important to african american adolescents. Arch Pediatr Adolesc Med. 1999;153(8):829-833.
doi:10.1001/archpedi.153.8.829
Lim SW, Chhabra R, Rosen A, Racine AD, Alderman EM. Adolescents’ views on barriers to health care: A pilot
study. J Prim Care Community Health. 2012;3(2):99-103. doi:10.1177/2150131911422533
Lyren A, Kodish E, Lazebnik R, O’Riordan MA. Understanding confidentiality: Perspectives of African American
adolescents and their parents. J Adolesc Health. 2006;39(2):261-265. doi:10.1016/j.jadohealth.2005.12.002
Moore KL, Dell S, Oliva MK, Hsieh Y-H, Rothman RE, Arrington-Sanders R. Do confidentiality concerns impact pre-
exposure prophylaxis willingness in emergency department adolescents and young adults? Am J Emerg Med.
2018 Nov 9. doi:10.1016/j.ajem.2018.11.015
Reddy DM, Fleming R, Swain C. Effect of mandatory parental notification on adolescent girls’ use of sexual
health care services. JAMA. 2002;288(6):710-714. doi:10.1001/jama.288.6.710
Rogers J, Silva S, Benatar S, Briceno ACL. Family planning confidential: a qualitative research study on the
implications of the affordable care act. J Adolesc Health. 2018;63(6):773-778.
doi:10.1016/j.jadohealth.2018.06.020
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Song X, Klein JD, Yan H, et al. Parent and adolescent attitudes towards preventive care and confidentiality. J
Adolesc Health. 2019;64(2):235-241. doi:10.1016/j.jadohealth.2018.08.015
Sugerman S, Halfon N, Fink A, Anderson M, Valle L, Brook RH. Family planning clinic patients: their usual health
care providers, insurance status, and implications for managed care. J Adolesc Health. 2000;27(1):25-33.
https://doi.org/10.1016/S1054-139X(99)00126-3
Thompson LA, Martinko T, Budd P, Mercado R, Schentrup AM. meaningful use of a confidential adolescent
patient portal. J Adolesc Health. 2016;58(2):134-140. doi:10.1016/j.jadohealth.2015.10.015
Trotman GE, Mackey E, Tefera E, Gomez-Lobo V. Comparison of parental and adolescent views on the
confidential interview and adolescent health risk behaviors within the gynecologic setting. J Pediatr Adolesc Gyn.
2018;31(5):516-521. doi:10.1016/j.jpag.2018.03.006
Health Care Provider Perspectives and Availability of Confidential Services
Akinbami LJ, Gandhi H, Cheng TL. Availability of adolescent health services and confidentiality in primary care
practices. Pediatrics. 2003;111(2):394-401. doi:10.1542/peds.111.2.394
Alderman EM. Confidentiality in Pediatric and Adolescent Gynecology: When we can, when we can’t, and when
we’re challenged. J Pediatr Adolesc Gyn.2017;30(2):176-183. doi:10.1016/j.jpag.2016.10.003
Alexander SC, Fortenberry JD, Pollak KI, et al. Sexuality talk during adolescent health maintenance visits. JAMA
Pediatr. 2014;168(2):163-169. doi:10.1001/jamapediatrics.2013.4338
Baldridge S, Symes L. Just between Us: An integrative review of confidential care for adolescents. J Pediatr
Health Care. 2018;32(2):e45-e58. doi:10.1016/j.pedhc.2017.09.009
Beeson T, Mead KH, Wood S, Goldberg DG, Shin P, Rosenbaum S. Privacy and confidentiality practices in
adolescent family planning care at federally qualified health centers. Perspect Sex Reprod Health. 2016;48(1):17-
24. doi:10.1363/48e7216
Edman JC, Adams SH, Park MJ, Irwin CE. Who gets confidential care? Disparities in a national sample of
adolescents. J Adolesc Health 2010;46(4):393-395. doi:10.1016/j.jadohealth.2009.09.003
Fairbrother G, Scheinmann R, Osthimer B, et al. Factors that influence adolescent reports of counseling by
physicians on risky behavior J Adolesc Health. 2005;37(6):467-476. doi:10.1016/j.jadohealth.2004.11.001
Ford CA, Millstein SG. Delivery of confidentiality assurances to adolescents by primary care physicians. Arch
Pediatr Adolesc Med. 1997;151(5):505-509. doi:10.1001/archpedi.1997.02170420075013
Ford CA, Skiles MP, English A, et al. Minor consent and delivery of adolescent vaccines. J Adolesc Health.
2014;54(2):183-189. doi:10.1016/j.jadohealth.2013.07.028
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McKee MD, Rubin SE, Campos G, O’Sullivan LF. Challenges of providing confidential care to adolescents in urban
primary care: Clinician perspectives. Ann Fam Med. 2011;9(1):37-43. doi:10.1370/afm.1186
O’Sullivan LF, Diane McKee M, Rubin SE, Campos G. Primary care providers’ reports of time alone and the
provision of sexual health services to urban adolescent patients: Results of a prospective card study. J Adolesc
Health. 2010;47(1):110-112. doi:10.1016/j.jadohealth.2009.12.029
Ringheim K. Ethical and human rights perspectives on providers’ obligation to ensure adolescents’ rights to
privacy. Stud Fam Planning. 2007;38(4):245-252. doi:10.1111/j.1728-4465.2007.00137.x
Rogers J, Silva S, Benatar S, Briceno ACL. Family planning confidential: A qualitative research study on the
implications of the Affordable Care Act. J Adolesc Health. 2018;63(6):773-778.
doi:10.1016/j.jadohealth.2018.06.020
Stablein T, Loud KJ, DiCapua C, Anthony DL. The catch to confidentiality: The use of electronic health records in
adolescent health care. J Adolesc Health. 2018;62(5):577-582. doi:10.1016/j.jadohealth.2017.11.296
Talib HJ, Silver EJ, Alderman EM. Challenges to adolescent confidentiality in a children’s hospital. Hospital
Pediatrics. 2016;6(8):490-495. doi:10.1542/hpeds.2016-0011
Tebb K. Forging partnerships with parents while delivering adolescent confidential health services: A clinical
paradox. J Adolesc Health. 2011;49(4):335-336. doi:10.1016/j.jadohealth.2011.08.005
Parent Perspectives
Ancker JS, Sharko M, Hong M, Mitchell H, Wilcox L. Should parents see their teen’s medical record? Asking about
the effect on adolescent–doctor communication changes attitudes. J Am Med Inform Assoc. 2018;25(12):1593-
1599. doi:10.1093/jamia/ocy120
Butler PW, Middleman AB. Protecting adolescent confidentiality: A response to one state’s “Parents’ Bill of
Rights”. J Adolesc Health. 2018;63(3):357-359. doi:10.1016/j.jadohealth.2018.03.015
Coker TR, Sareen HG, Chung PJ, Kennedy DP, Weidmer BA, Schuster MA. Improving access to and utilization of
adolescent preventive health care: The perspectives of adolescents and parents. J Adolesc Health.
2010;47(2):133-142. doi:10.1016/j.jadohealth.2010.01.005
Duncan RE, Vandeleur M, Derks A, Sawyer S. Confidentiality with adolescents in the medical setting: What do
parents think? J Adolesc Health. 2011;49(4):428-430. doi:10.1016/j.jadohealth.2011.02.006
Eisenberg ME, Swain C, Bearinger LH, Sieving RE, Resnick MD. Parental notification laws for minors’ access to
contraception: What do parents say? Arch Pediatr Adolesc Med. 2005;159(2):120-125.
doi:10.1001/archpedi.159.2.120
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Ford CA, Davenport AF, Meier A, McRee A-L. Partnerships between parents and health care professionals to
improve adolescent health. J Adolesc Health. 2011;49(1):53-57. doi:10.1016/j.jadohealth.2010.10.004
Irwin CE. Time alone for adolescents with their providers during clinical encounters: It is not that simple! J
Adolesc Health. 2018;63(3):265-266. doi:10.1016/j.jadohealth.2018.06.014
Lyren A, Kodish E, Lazebnik R, O’Riordan MA. Understanding confidentiality: Perspectives of African American
adolescents and their parents. J Adolesc Health. 2006;39(2):261-265. doi:10.1016/j.jadohealth.2005.12.002
Miller VA, Friedrich E, García-España JF, Mirman JH, Ford CA. Adolescents spending time alone with pediatricians
during routine visits: Perspectives of parents in a primary care clinic. J Adolesc Health. 2018;63(3):280-285.
doi:10.1016/j.jadohealth.2018.01.014
Song X, Klein JD, Yan H, et al. Parent and adolescent attitudes towards preventive care and confidentiality. J
Adolesc Health. 2019;64(2):235-241. doi:10.1016/j.jadohealth.2018.08.015
Tebb KP, Pollack LM, Millstein S, Otero-Sabogal R, Wibbelsman CJ. Mothers’ attitudes toward adolescent
confidential services: Development and validation of scales for use in English- and Spanish-speaking populations.
J Adolesc Health. 2014;55(3):341-346. doi:10.1016/j.jadohealth.2014.03.010
Trotman GE, Mackey E, Tefera E, Gomez-Lobo V. Comparison of parental and adolescent views on the
confidential interview and adolescent health risk behaviors within the gynecologic setting. J Pediatric Adolesc
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Cheng T, Savageau J, Sattler A, DeWitt T. Confidentiality in health care (A survey of knowledge, perceptions, and attitudes
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Klein J, Wilson K, McNulty M, et al. Access to medical care for adolescents (Results from the 1997 Commonwealth Fund
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Ford CA, Bearman PS, Moody J. Foregone health care among adolescents. JAMA. 1999; 282: 2227–2234.
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Ford C, Best D, Miller W. Confidentiality and adolescents' willingness to consent to STD testing. Arch Pediatr Adolesc Med.
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Sugerman S, Halfon N, Fink A, et al. Family planning clinic clients (Their usual health care providers, insurance status, and
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Ford CA, et al., Young adults’ attitudes, beliefs, and feelings about testing for curable STDs outside of clinic settings,” J
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Reddy DM, Fleming R, Swain C. Effect of mandatory parental notification on adolescent girls' use of sexual health care
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Morreale MC, Stinnett AJ, Dowling EC, eds. Policy Compendium on Confidential Health Services for Adolescents, 2d ed.
Chapel Hill NC: Center for Adolescent Health & the Law, 2005.
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Burstein G et al. Confidentiality protections for adolescents and young adults in the health care billing and insurance
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Extensive resources on confidentiality and insurance were developed by the National Family Planning & Reproductive
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14
AAP Committee on Adolescence. Policy statement for health information technology to ensure adolescent privacy.
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N.M. Stat. Ann. §§ 24-10-1; 32A-21-5.
18
N.M. Stat. Ann. § 32A-21-3.
19
N.M. Stat. Ann. §§ 24-10-1; 24-7A-6.2.
20
N.M. Stat. Ann. § 24-7A-6.2.
21
N.M. Stat. Ann. § 24-10-2; § 24-8-5; § 24-1-13; § 24-1-9; § 32A-6A-15; § 32A-6A-16; § 32A-6A-14; § 32A-6A-20; § 32A-6A-
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22
Kaiser Family Foundation. Emergency Contraception. August 2016. http://files.kff.org/attachment/emergency-
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Guttmacher Institute. Parental Involvement in Minors’ Abortions. https://www.guttmacher.org/state-
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N.M. Stat. Ann. § 24-7A-6.2.
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
Adolescent & Young Adult Health National Resource Center
Center for Adolescent Health & the Law
March 2019
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26
N.M. Stat. Ann. § 24-7A-6.2.
27
See, e.g., Health Services for Foster Children, N.M. Admin. Code § 8.69.27.19.
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29
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30
See, e.g., Glosser A, Gardner K, Fishman M. Statutory Rape: A Guide to State Laws and Reporting Requirements. Office of
the Assistant Secretary for Planning and Evaluation, U.S. Dep’t of Health & Human Services, 2004.
https://aspe.hhs.gov/report/statutory-rape-guide-state-laws-and-reporting-requirements.
31
English A, Ford C. The HIPAA Privacy Rule and adolescents: Legal and ethical questions multiply. Persp on Sexual Reprod
Health 2004; 36(2):80-86. https://www.guttmacher.org/journals/psrh/2004/hipaa-privacy-rule-and-adolescents-legal-
questions-and-clinical-challenges.
32
45 C.F.R. § 164.502(g)(3)(i)(A).
33
45 C.F.R. § 164.502(g)(3)(i)(C).
34
45 C.F.R. § 164.502(g)(5).
35
45 C.F.R. § 164.502(g)(3)(ii).
36
45 C.F.R. § 164.502(g)(3)(ii)(A) and (B).
37
45 C.F.R. § 164.502(g)(3)(ii)(C).
38
45 C.F.R. §§ 164.502(h), 164.522(a)(1), and 164.522(b)(1).
39
45 C.F.R. § 164.512(c).
40
20 U.S.C. § 1232g; 34 C.F.R. Part 99.
41
U.S. Dep’t Health & Human Services, U.S. Dep’t of Education. Joint Guidance on the Application of the Federal
Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 to Student
Health Records. November 2008. https://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf.
42
45 C.F.R. § 160.103 (definition of “protected health information”).
43
U.S. Dep’t of Health & Human Services, U.S. Dep’t of Education. Joint Guidance on the Application of the Federal
Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 to Student
Health Records. November 2008. https://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf.
44
42 C.F.R. § 59.11.
45
English A, Center for Adolescent Health & the Law, and National Family Planning & Reproductive Health Association,
Adolescent Confidentiality Protections in Title X, June 5, 2014.
http://www.nationalfamilyplanning.org/document.doc?id=1559.
46
42 C.F.R. § 59.11.
47
Child Welfare Information Gateway, State Statutes Search,
https://www.childwelfare.gov/systemwide/laws_policies/state.
48
Futures Without Violence, Mandatory Reporting of Domestic Violence to Law Enforcement by Health Care Providers: A
Guide for Advocates Working to Respond to or Amend Reporting Laws Related to Domestic Violence,
http://www.futureswithoutviolence.org/userfiles/Mandatory_Reporting_of_DV_to_Law%20Enforcement_by_HCP.pdf.
49
Public Health Law Research, Temple University, State Statutes Explicitly Related to Sexually Transmitted Diseases in the
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50
“Compliance With Statutory Program Integrity Requirements,” 84 Federal Register 7714, 7725, March 4, 2019,
https://www.govinfo.gov/content/pkg/FR-2019-03-04/pdf/2019-03461.pdf.
51
National Family Planning & Reproductive Health Association, Analysis of 2019 Final Rule on Title X Family Planning
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FINAL.pdf}milyplanning.org/pages/issues/title-x-cases#2019.
Adolescent & Young Adult Health Care in New Mexico
A Guide to Understanding Consent & Confidentiality Laws
Adolescent & Young Adult Health National Resource Center
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March 2019
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52
E.g., National Family Planning & Reproductive Health Association, Title X Cases,
https://www.nationalfamilyplanning.org/pages/issues/title-x-cases#2019.
53
42 U.S.C. § 1396a(a)(7).
54
42 U.S.C. § 1396d(a)(4)(C).
55
E.g., Doe v. Pickett, 480 F. Supp. 1218 (S.D.W.Va. 1979); Planned Parenthood Association v. Matheson, 582 F. Supp. 1001
(D.C. Utah 1983); County of St. Charles v. Missouri Family Health Council, 107 F.3d 682 (8
th
Cir. 1997), rehearing denied (8
th
Cir. 1997), cert. denied 522 U.S. 859 (1997).
56
Guttmacher Institute, State Medicaid Family Planning Eligibility Expansions, December 2018.
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57
42 U.S.C. § 290dd-2; 42 C.F.R. Part 2.
58
Legal Action Center. Substance Use: Confidentiality Resources. https://lac.org/resources/substance-use-
resources/confidentiality-resources/.
59
42 C.F.R. §§ 2.11, 2.12.
60
42 C.F.R. § 2.14.
61
42 C.F.R. § 2.13.
62
42 C.F.R. § 2.20.
63
42 U.S.C. §§ 300ff et seq.
64
42 U.S.C. §§ 300ff-61, 300ff-62.
65
42 U.S.C. §§ 254b et seq.
66
42 U.S.C. § 254b(a)(1)(A) and (b)(1)(A)(i)(III).
67
42 U.S.C. § 254b(k)(3)(C).
68
42 C.F.R. § 51c.110.
69
42 C.F.R. § 59.11.
70
AYAH Resource Center. Evidence-Based Clinical Preventive Services for Adolescents & Young Adults.
http://nahic.ucsf.edu/wp-content/uploads/2016/03/March-2016_AYAHNRC_evidence.V3.pdf.
71
Kaiser Family Foundation. Emergency Contraception. August 2016. http://files.kff.org/attachment/emergency-
contraception-fact-sheet.
72
Guttmacher Institute. Parental Involvement in Minors’ Abortions. https://www.guttmacher.org/state-
policy/explore/parental-involvement-minors-abortions.
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