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Frequently Asked Questions
Who may present a child for immunizations at a local
health department and sign forms related to those immunizations
(such as the acknowledgment of receipt of the notice
of privacy practices)?
Q . Who can sign for a child’s immunizations?
North Carolina law permits a local health department
to immunize a child in either of two circumstances:
(1) When the child’s parent, guardian, or person
standing in loco parentis (PILP) presents the child
for the immunization and gives consent for the immunization,
or
(2) When another adult presents the child for immunization
and signs a statement that he or she is authorized
by a parent, guardian, or person standing in loco
parentis to obtain the immunization.
G.S. § 130A-153(d).
Q. Should an adult who falls under (2) above
be considered a person standing in loco parentis (PILP)?
No. G.S. 130A-153(d) simply authorizes the health
department to accept the adult’s assertion that
he or she is acting on behalf of the parent, guardian,
or PILP in obtaining the immunization—it does
not transform him or her into a parent, guardian,
or PILP. Click here for a sample “Statement
of Authority to Present a Child for Immunizations.” Click here for a sample “Statement of Authority to Present
a Child for Immunizations.”
Q. If the person who signs for the child’s
immunizations is not the child’s parent, guardian,
or PILP, should the health department give him or her
the Notice of Privacy Practices (NOPP)? Can he or she
sign the form acknowledging receipt of the NOPP?
If it is the first delivery of service to the child
since April 14, 2003, the health department must provide
the NOPP to the child’s parent, guardian, or
PILP. The health department must also make a good
faith effort to obtain acknowledgment of receipt of
the NOPP from the parent, guardian, or PILP. There
are a couple of ways the health department could go
about this:
- The health department could give the NOPP and
the form acknowledging receipt of the NOPP to the
adult who presents the child for immunization. The
department should instruct the adult to deliver
both items to the child’s parent, guardian,
or PILP with the request that the parent, guardian,
or PILP sign it and return it to the health department.
- The health department could mail the NOPP and
the form acknowledging receipt of the NOPP to the
child’s parent, guardian, or PILP. The department
should ask the parent, guardian, or PILP to sign
the acknowledgment and return it to the health department.
In either case, the health department must document
its good faith effort to obtain the acknowledgment.
If the health department has a written protocol for
obtaining acknowledgment in this situation, the documentation
could simply state that acknowledgment protocols were
followed.
Discussion: Under HIPAA, the health
department is required to give the NOPP to each individual
with whom it has a direct treatment relationship (essentially,
any clinical patient) upon the first delivery of service
that occurs on or after April 14, 2003. It must also
make a good faith effort to obtain the individual’s
acknowledgment of receipt of the NOPP.1 When the individual is an unemancipated minor child
in the immunization clinic, the acknowledgment should
be obtained from the child’s personal representative.
However, an adult other than a parent, guardian, or
PILP who presents a child for immunization is not
a personal representative of the child for purposes
of the HIPAA privacy rule,2 and therefore cannot acknowledge receipt of the NOPP
on the child’s behalf. Thus, the health department
must have a method for providing the NOPP and the
acknowledgment form to the child’s parent, guardian,
or PILP.
If the health department is unable to obtain the
acknowledgment, it is required by HIPAA to document
its good faith efforts to obtain the acknowledgment
and the reason acknowledgment was not obtained. A
health department may prefer to simplify the documentation
requirement in this situation by having a standard
protocol that specifies:
- How the NOPP and acknowledgment form will be
provided to the parent, guardian, or PILP (e.g.,
by being mailed, or by being sent with the adult
who presents the child for immunization).
- That if the acknowledgment is not obtained, it
will be presumed that the reason it was not obtained
was that the parent, guardian, or PILP failed to
return the form. A notation that “protocols
were followed” will suffice to document this
presumptive reason. However, if there was another
reason the acknowledgment was not obtained (such
as, the parent notified the health department that
he or she objected to signing the form), the reason
must be documented separately.
Q. If the adult who signs for the child’s
immunizations is not the child’s parent, legal
guardian, or PILP, can he or she sign the form giving
permission to use and disclose health information for
treatment, payment, and health care operations (TPO)?
The laws that apply to this situation are ambiguous.
However, we believe it is reasonable to ask the adult
to sign a form giving consent to use or disclose information,
when the form is strictly limited to provide:
- The only information that may be disclosed is
information related to the immunization the adult
signed for, and
- The only purposes for which the information may
be used or disclosed are treatment, payment, and
health care operations.
The adult must not sign a form giving consent to
use or disclose any other of the child’s health
information for any purpose.
Discussion: Under the HIPAA privacy
rule, the health department is not required to obtain
permission to use and disclose health information
for TPO. However, most major health care providers
in North Carolina interpret state law to require consent
to disclose information for these purposes, and the
Institute of Government has advised health departments
that the safest course is to follow their lead and
obtain this consent.3 A form provided by the Division of Public Health (Form
3096) is often used for this purpose. Local health
departments usually try to obtain a signature on this
form the first time a client is served, and then they
rely on it to use and disclose information related
not only to that first delivery of service, but to
subsequent services as well.
This practice needs to be modified in this circumstance,
because an adult who is not a parent, guardian, or
PILP does not have the authority to consent to uses
and disclosures of the child’s health information.
State law does not incorporate HIPAA’s personal
representatives rule or otherwise clearly address
who can consent to disclosure of a child’s health
information. However, it is widely assumed that, under
state law, the person who consents to the child’s
care can also consent to disclosure of the information.
In most circumstances, only a parent, legal guardian,
or PILP can consent to a child’s care.4 Therefore, only the parent, legal guardian, or PILP
can consent to use or disclosure of information related
to the child’s care.5
We sometimes say that an adult who presents a child
for immunization on behalf of the parent, guardian,
or PILP has “consented” to the immunization—but
strictly speaking, that isn’t correct. The parent,
guardian, or PILP has consented to the immunization,
but has authorized the other adult to obtain it for
the child. The adult is simply acting on behalf of
the parent, guardian, or PILP—he or she has
not acquired the rights of the parent, guardian, or
PILP. Since he or she does not have legal authority
to consent to the child’s care, he or she does
not have the authority to consent to use or disclosure
of the child’s health information.
But since, in this limited circumstance, N.C. law
permits an adult to act on the parent’s behalf
in obtaining the immunization, couldn’t we also
conclude that the adult may act on the parent’s
behalf and consent to use and disclosure of information
related to the immunization? N.C. law doesn’t
address this specifically, but we think it is reasonable
position to take. We therefore think it would be a
reasonable practice to accept the adult’s consent
to use or disclose only that information that is related
to the immunization the adult signed for, and only
for TPO purposes. However, the health department must
not rely on the adult’s consent to use or disclose
any other information it has about the child. The
health department may need to modify its current practices
or forms to ensure that no person in the health department
relies on the adult’s signature to disclose
any of the child’s information other than that
related to the immunization.
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145 C.F.R. 164.520(c)(2).
2The HIPAA privacy
rule states: “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 …” 45 C.F.R. § 164.502(g)(3).
There are exceptions to this general rule for several
circumstances, such as when a minor consents to his
or her own care under state law that authorizes the
minor to give consent, but no exception appears to allow
the health department to treat an adult who signs for
immunizations but who is not a parent, guardian, or
PILP as a personal representative.
3For more information
on this recommendation, see http://www.medicalprivacy.unc.edu/faqs/faqs07.htm.
4There are exceptions
for emergencies or other urgent situations. See G.S.
90-21.1. Also, older minors can consent to their own
care for certain conditions (including family planning,
prenatal care, and STD care). See G.S. 90-21.5. A parent
may authorize another person to consent to the child’s
care in the parent’s absence. See G.S. 32A-28
et seq. If a child is in the custody of the county department
of social services, the director of social services
may consent to needed routine or emergency medical care
(unless the court has ordered otherwise). G.S. 7B-903(a)(2)c.
5When a person other
than a parent, guardian, or PILP has authority to provide
broad consent to treatment for a minor (such as a person
authorized by G.S. 32A-28, or the county DSS when it
has custody of the child), that person may also sign
a form giving permission to use or disclose information
related to that care for purposes of treatment, payment,
and health care operations.
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