The Health Insurance Portability and Accountability (HIPAA) Act of 1996 recognizes the role of spouses and parents in a patient’s healthcare journey. However, in the case of ending marriages, it becomes complicated, especially when determining who can make the final decision about their child’s medical treatments and other healthcare-related activities.
Let’s delve deeper into HIPAA’s role in divorce proceedings, discuss the importance of safeguarding protected health information (PHI), and how to avoid HIPAA violation in divorce.
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Understanding HIPAA’s Importance in Divorce Cases
A messy divorce can put a medical provider in a clash between two parents fighting for their right to child custody. It’s important to know that HIPAA recognizes all family members and their right to access and control the medical records of their children, spouses, and other relatives as authorized representatives.
Following a divorce, the HIPAA law ensures that parents of minor children have the right to access their child’s medical records. Both parents retain their legal responsibility to decide for their child. Regardless of who is closer to the child, custody designations don’t matter unless stated otherwise in the final separation order or divorce decree.
Protection of privacy
HIPAA is crucial in keeping medical records private and confidential during legal proceedings. Failure to abide by the Security Rule could potentially lead to a HIPAA violation in divorce cases, especially when it compromises the well-being of a child or dependent family member. However, it’s also worth noting that the court holds the power to allow the disclosure of PHI during divorce cases, but it varies per circumstance.
Loss of parental rights
While both parents have the right to access their child’s medical files, the party who objects may file an opposition. This may come into play when one party seeks support from the other due to a medical condition or disability. The court will decide who gets the medical records, especially if it’s relevant to the child’s custody and visitation rights. Moreover, the court has the power to remove a non-custodial parent’s parental rights.
No control over emancipated minors
Minors can assume adult authority over their health records when they are legally responsible for themselves. Usually, this happens when minors get married, enlist in the military, become parents, or receive permission from the court. Divorced parents of an emancipated minor must first obtain consent from their child before requesting or disclosing their medical information.
HIPAA Violations During Divorce Proceedings
Here are some common examples of HIPAA violations during divorce proceedings:
Accessing mental health records of ex-spouse
Under HIPAA, all medical records related to patients’ mental health must remain private. During divorce proceedings, an ex-spouse may tend to violate the HIPAA Privacy Rule by obtaining their ex-partner’s mental health records. HIPAA prohibits medical providers from discussing medical information unless there’s a court order.
Snooping into ex-partner’s PHI as a hospital employee
Another common HIPAA violation in divorce proceedings is snooping. Employees who access their ex-partner’s protected health information without authorization are subject to fines for HIPAA violations. If the court proves theft or loss of medical records, this may negatively affect their pending divorce case.
Best Practices to Prevent HIPAA Violations While Navigating Divorce
When finding the safest option to navigate divorce cases, both parties must develop a clear written policy on how they will effectively handle the situation. Under HIPAA, the said policy should include the following best practices:
Sign HIPAA forms
Parents must sign HIPAA forms to protect the privacy rights of their children. As for pending divorce cases, the parents must request copies of the temporary orders. But if the decision is final, you can request a copy of the court-approved separation agreement.
Ensure parental rights over child’s health records
Before requesting a copy of a child’s PHI, parents should make sure they have legal rights to access their child’s medical records. In case of further litigation, your lawyer must keep all releases on HIPAA compliance for divorce clients related to the child’s case notes.
Secure valid authorization
If the court removes your parental rights, you must request written authorization from the ex-spouse who oversees your child’s medical records. For legally emancipated minors, it’s best to sift through the court documents first to ensure who may consent to the treatment or if the child must provide written authorization.
Safeguarding PHI in Divorce Mediation and Litigation
Separated or divorced parents may struggle to access their child’s medical records. As a means to safeguard protected health information, divorce mediation allows couples to act with mutual respect and cooperation. This way, both parties can have a written agreement on child custody and support, including access to their child’s PHI.
However, there are certain situations when spouses can’t agree on these matters. This is where divorce litigation comes into play. In this case, the court will eventually decide on the outcome of the divorce, especially on whether they can still retain their parental rights.
