MINORS' HEALTH RIGHTS

MINORS' HEALTH RIGHTS ACCESSING CONFIDENTIAL TREATMENT FOR HIV/AIDS, SUBSTANCE USE, AND OTHER SENSITIVE HEALTH ISSUES NOVEMBER 6, 2019 @GMHC

Who are your trainers? • Jacqueline Seitz, Staff Attorney • Christine Khaikin, Health Policy Attorney • Legal Action Center (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

What is the Legal Action Center? Non-profit law and policy organization Mission: fight discrimination against people with histories of substance use, HIV/AIDS, or criminal records Strategies: • Direct legal services • Impact litigation • Trainings and technical assistance • Policy advocacy (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Do You Need Help Accessing Addiction or Mental Health Care? Community Health Access to Addiction and Mental Healthcare Project (CHAMP) can help you:KNOWyour insurance rightsFIGHT insurance denials for mental health and addiction careCHALLENGE insurance barriers & discriminationGETthe most from your coverageRECEIVE fair reimbursementLEARNabout options for low-cost care for the uninsuredANDMUCHMORE!So you can access treatment for mental health & substance use disorders, including medication.CALL our Helpline (888) 614-5400 Helpline Hours: Monday-Friday, 9 a.m. – 4 p.m. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

This training is for… • Providers of HIV care and other healthcare services… • Serving young people living with, at risk of, or otherwise affected by HIV/AIDS… • Working in New York State. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Objective #1 Identify when minors can make their own healthcare decisions for: • STD care, including HIV testing, prevention (including PrEP), and treatment • Reproductive healthcare, substance use treatment, and mental health treatment (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Objective #2 Identify who can learn about a minor’s confidential healthcare, including: • Parents and legal guardians • Foster care agencies, school officials, and social workers (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Image: Negative Space/CC0 Welcome! Please share your: Name Role at work Why you’re interested in the topic of minors’ health rights (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Minors’ Rights to Access Healthcare Section 1: When can a minor make their own healthcare decisions? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Level set – why are we talking about this • Understanding minors’ health rights is important for improving access to care: • Parents want and often need to be involved • But minors will sometimes avoid seeking care if parents will be involved • Law tries to strike a balance (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

General principle New York law generally respects an individual’s right to make their own healthcare decisions • Includes right to refuse healthcare, which can mean all treatment, or a particular test / treatment / service (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Who decides for minors? • In most cases, parental consent is needed to provide medical or other health services to a child under 18 • Consent of one parent is enough Law also authorizes certain other parties to stand in for the parent to make healthcare decisions for minors. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Who is a parent? • Biological or adoptive parent • Legal guardian • If court takes child into court custody, or child removed from family, local DSS/DOH commissioner may consent • (Generally, bio parent’s consent needed for children placed voluntarily in foster care) • Other persons who stand in parent’s shoes for purpose of making healthcare decisions for child and are authorized by law to consent (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

We will use the term “parent” here to include biological/adoptive parents and legal guardians (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice. Image: Negative Space/CC0

Case study: Legal guardians • Emilia is 11 years old. Her mother died and her father’s parental rights were terminated. Her legal guardian is her parents’ friend Lorraine. Emilia’s closest relative is her aunt Sylvie. • Q: Who is the person authorized by law to consent to healthcare for Emilia? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Legal guardians A: Lorraine is Emilia’s legal guardian, so she is the person authorized by law to consent to Emilia’s healthcare. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Foster care • Elmo is 3 years old and his mother is diagnosed with opioid use disorder. His mother decides to voluntarily place Elmo in foster care so she can complete an in-patient treatment program. • Q: Who is the person authorized by law to consent to healthcare for Elmo? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Foster care • A: Elmo’s mother retains her right to make healthcare decisions for Elmo, but she can also delegate decision-making authority to the local commissioner of social services. The commissioner may also consent in some circumstances if Elmo’s mother refuses or is unable to consent within 10 days. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Who is a “minor” in NY? New York law treats everyone under 18 years old as a “minor” for purposes of making healthcare decisions, unless they are: • Pregnant • A parent • Married • Incarcerated • Emancipated (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Pregnant minors • Ann is 15 years old and pregnant. She does not want her parents to know. • Ann wants to see a OB-GYN for a prenatal check-up. • She also wants to see a doctor because she has a bad cough and sore throat. • Q. If Ann makes an appointment with a doctor, does the doctor need to contact her parents? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Pregnant minors • A. No, Ann’s parents do not need to be involved; she can consent to treatment for both the prenatal care and the general healthcare. • Pregnant minors may consent to their own “medical, dental, health and hospital services relating to prenatal care” – this covers virtually all care during pregnancy and related to delivery. PHL 2504(3) (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Minor parents • Balthazar is 17 years old and just had a baby with his former girlfriend. His doctor recommended he have a small surgery, but his mom wants him to wait. • Q. Can Balthazar consent to his own surgery? Does it depend on whether: • - His mom formally objects? • - He is not the custodial parent? • - Paternity is not legally established? • - The baby’s mom voluntarily gave up parental rights? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Minor parents • A: Balthazar may consent to his own healthcare (and his child’s healthcare), because he is a parent. • Balthazar’s parent cannot ”override” his consent, and it does not matter if: • - Paternity is legally established or not • - He has physical/legal custody of the child or not • - The other parent voluntarily gave up parental rights or had their rights terminated (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

What about “emancipated minors”? Emancipated means parents have renounced rights, and child entitled to some adult rights and privileges, including making their own healthcare decisions No clear legal definition or procedure in NY for determining whether a minor is “emancipated” Emancipated minors may request “letter of emancipation” from youth legal services organization to show to healthcare providers, but provider may still use discretion (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

“Minors” • Moving forward in this presentation, we will use the term “minor” to mean a person under 18 years old who is NOT pregnant, a parent, married, incarcerated, or otherwise emancipated. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice. Image: Negative Space/CC0

When can minors make their own healthcare decisions? • Minors can make their own healthcare decisions if they have capacity to consent and need the following services: • Reproductive health services • STD testing/treatment (including HIV) • Emergency care • In some cases – substance use treatment • In some cases – mental health treatment (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

How young is too young for capacity? • No specific age cut-off • Depends on the minor, and depends on the nature of the decision • Questions for the audience: • Have you ever evaluated a minor’s capacity to consent? • What factors did you look for? • What questions did you ask? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Access to RH Care • Maria is 17 years old and visiting NYC from Louisiana. She visits a clinic to ask for contraception. • Q. Does the clinic need to notify her parents and obtain their consent before providing services to Maria? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Access to RH Care • A: No, Maria can consent to her own reproductive healthcare without parental consent, so long as she has capacity. While she is in New York, she is treated according to New York law. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Minors’ Rights to Access STD Care, Including HIV In 2017, New York added HIV to list of STDs – so now minors may consent to treatment and prevention of HIV just like other STDs, so long as they have capacity (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Access to STD Care • Jacob is 16 years old and learned that his girlfriend may have genital herpes. • Q: Can Jacob go to the doctor for a test and treatment without his parents’ consent? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Access to STD Care • A: Yes, Jacob can consent to his own STD care, so long as he has capacity. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

HIV Testing Providers must offer HIV testing to patients ages 13+ as part of routine care, and orally advise that they are going to conduct a HIV test Prior to 2016, providers needed ”informed consent” – now just need oral advisement. Advisement (and any objection) should be noted in the medical record. If patient objects, provider should not conduct test • If patient is a minor and does not have capacity, then parent is the party who must object (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

HIV Prevention & Treatment Minors with capacity may consent to prevention, including: • PrEP – pre-exposure prophylaxis • PEP – post-exposure prophylaxis Minors with capacity may also consent to treatment (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Small group discussion • Mickey is 15 years old and had unprotected sex with his boyfriend. He wants to get tested for STDs, including HIV. • Can Mickey consent to the STD tests, including HIV? • If the test is negative, can he consent to PrEP/PEP? • If the test is positive, can he consent to treatment? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Small group discussion, key points • Mickey may consent to the STD tests, including HIV – if the healthcare provider determines he has capacity to consent. • If the test is negative, he can consent to PrEP • If the test is positive, he can consent to treatment (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

General rule for minors and SUD, MH treatment: parental consent required • New York law recognizes important role of parents in treating a minor for substance use or mental health, and encourages providers to involve parents in the course of treatment. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Parental consent not needed if minor has capacity and (one of the following): • - Parental involvement would have detrimental effect on minor’s treatment • - Parent refuses to consent, and treatment necessary for child’s best interests • - Service provider cannot locate parents after making reasonable effort, or parents fail to communicate within reasonable time • *Slightly different rules apply for voluntary MH hospitalizations (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Access to MH Care Constance is 15 years old. Her pediatrician refers her to out-patient treatment for an eating disorder with a psychologist. Her parents refuse to consent to treatment. Q: Can the psychologist treat Constance? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Case study: Access to MH Care A: Yes, the psychologist may treat Constance, if she has capacity and consents to the treatment. (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

General rule for emergencies • Minors may receive medical, dental, health and hospital services without parental consent if • - Minor has immediate need of medical attention and • - An attempt to get consent would delay treatment and increase risk to patient’s life or health (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Section 1 Summary • Minors may consent to their own healthcare if they are pregnant, married, a parent, or incarcerated (or emancipated?) • Minors with capacity may also consent to STD care, including HIV testing, prevention and treatment, reproductive healthcare, and emergency care • Minors with capacity may also – sometimes – consent to SUD and mental health treatment • If minor cannot consent, need consent of parent or other authorized party When can a minor make their own healthcare decisions? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

Minors' Health Privacy Rights Section 2: When can a minor’s parent - or other involved adult - access the minor's health information? (c) 2019 Legal Action Center | This document is informational and does not constitute legal advice.

MINORS' HEALTH RIGHTS