TEENAGERS,
HEALTH CARE,
AND THE LAW:
A Guide To Minors’ Rights
in New York State
The New York Civil Liberties Union in collaboration
with The Lowenstein Center for the Public Interest
at Lowenstein Sandler LLP
3rd edition, 2018
III.
SECTION
TITLE
ACKNOWLEDGMENTS
Teenagers Health Care and the Law was drafted
by Catherine Weiss, Elias Kwon, Rachel A. Shapiro,
Patrick J. Vinett, Mary Knodel, Donna Lieberman,
and Katharine Bodde based on prior editions by
Jessica Feierman, Donna Lieberman, Anna Schissel,
Rebekah Diller, Jaemin Kim and Yeuh-ru Chu.
The authors wish to acknowledge support from
Beth Haroules, Erin Beth Harrist, Bobby Hodgson,
Rashida Richardson, Abby Allender, Sebastian Krueger,
Carrie Chatterson and youth organizers from the
NYCLU’s Teen Activism Project.
3Teenagers, Health Care, and the Law
TABLE OF CONTENTS
INTRODUCTION .................................................... 8
I. BASIC DEFINITIONS ....................................... 12
Who Is a Minor? ........................................................................... 13
Who Is an Adult? ......................................................................... 13
What Is Informed Consent? ...................................................... 13
What Is Confidentiality? ........................................................... 15
II. CONSENTING TO HEALTH CARE ................. 16
Minors and Consent ....................................................................17
Adults Who Can Consent on Behalf of a Minor ................... 19
Parents ......................................................................................... 19
Guardians and Parental Designees ......................................... 20
The Commissioners of Health or Social Services ................. 20
Consent for Vaccinations ........................................................... 21
Legal Status and Minors’ Rights to Consent to Care .......... 22
Married Minors ............................................................................22
Minors Who Are Parents ............................................................22
Pregnant Minors ..........................................................................23
Emancipated Minors ...................................................................24
Incarcerated Minors ...................................................................26
Mature Minors .............................................................................27
4 Teenagers, Health Care, and the Law
III. CONFIDENTIALITY IN HEALTH CARE ..........28
General Confidentiality Rules .................................................29
Schools and Confidentiality .....................................................32
When Otherwise Confidential Care
May Not Be Confidential .......................................................... 35
Child Abuse Reporting .............................................................. 36
What Is the Child Abuse Reporting Law? .......................... 36
How Might the Reporting Law Present a
Confidentiality Problem for Non-Abused Minors? ............ 37
Sexually Transmitted Infection Reporting .............................. 39
Prevention of “Harmful Acts” to Third Parties ....................... 39
Court Proceedings ..................................................................... 40
Confidentiality Among Health Care Providers
and in the Insurance and Billing Process ............................... 40
IV. TYPES OF HEALTH CARE THAT
MINORS CAN RECEIVE WITHOUT
PARENTAL CONSENT
................................... 46
Birth Control ................................................................................47
Consent and Access ..................................................................47
Confidentiality ............................................................................ 48
Exception: Sterilization ............................................................ 48
Emergency Contraception ....................................................... 49
Purchasing Emergency Contraception .................................... 49
Emergency Contraception, Medicaid, and Title X ................. 49
Emergency Contraception and Rape Crisis Care .................. 50
5Teenagers, Health Care, and the Law
TABLE OF CONTENTS
Consent ....................................................................................... 50
Confidentiality ............................................................................ 50
Abortion ....................................................................................... 50
Consent ....................................................................................... 50
Confidentiality ............................................................................. 51
Sexually Transmitted Infections (STIs) ..................................52
Consent ........................................................................................52
Confidentiality .............................................................................52
HIV/AIDS ...................................................................................... 53
Consent ....................................................................................... 53
Testing ......................................................................................... 54
Confidentiality ............................................................................ 55
Special Confidentiality Considerations
in HIV/AIDS Care ........................................................................ 55
Disclosure to a Minor’s Parents or Guardians .................. 56
Disclosure to a Minor’s Adoption or Foster Care
Agency, Adoptive or Foster Parents, or Attorney ............. 56
Disclosure Pursuant to Written Consent ............................57
Disclosure Pursuant to a Court Order ...............................57
Tests and Diagnoses of HIV: Reports to the
Department of Health .......................................................... 58
Tests and Diagnoses of HIV: Contact Tracing .................. 58
Ongoing HIV Treatment:
Partner/Contact Notification ............................................. 60
Prenatal Care, Labor, and Delivery Services ........................62
Consent ........................................................................................62
6 Teenagers, Health Care, and the Law
Confidentiality .............................................................................62
Sexual Assault Care .................................................................. 63
What Is Sexual Assault? ........................................................... 63
What Does Sexual Assault Care Involve? ............................... 63
Consent ....................................................................................... 64
Confidentiality ............................................................................ 65
Mental Health Counseling and Services ...............................67
Consent ........................................................................................67
Outpatient Treatment ........................................................... 67
Inpatient Treatment .............................................................. 69
Confidentiality ............................................................................70
Alcohol and Substance Abuse Services ................................ 72
Consent ........................................................................................ 72
Confidentiality ............................................................................. 73
Emergency Care ..........................................................................75
Consent ........................................................................................ 75
Confidentiality ............................................................................. 76
Transgender-Related Health Care ..........................................76
Consent ........................................................................................ 76
Confidentiality .............................................................................77
Equal Access to Health Care ..................................................... 77
Coverage for Low-Income Minors .............................................77
V. MINORS IN FOSTER CARE ............................78
HIV-Related Information ........................................................... 79
7Teenagers, Health Care, and the Law
TABLE OF CONTENTS
Reproductive Health Care ....................................................... 80
Transgender-Related Health Care .......................................... 81
VI. PUBLIC HEALTH INSURANCE
PROGRAMS AVAILABLE TO MINORS
...........82
Medicaid ...................................................................................... 83
Eligibility ...................................................................................... 83
Confidentiality ............................................................................ 85
Child Health Plus ....................................................................... 86
Eligibility ...................................................................................... 86
Confidentiality ............................................................................. 87
CONCLUSION ...................................................... 88
8 Teenagers, Health Care, and the Law
Adolescents often do not get the health care they need.
1
Research over decades has confirmed that one major
barrier is adolescents’ fear that health care providers will
disclose confidential information about sensitive issues
to their parents or guardians.
2
But in many situations, the
law allows teenagers to obtain medical treatment – including
“sensitive” health care, such as reproductive or mental
health services – without their parents’ involvement or
even knowledge.
This booklet seeks to clarify teenagers’ rights under New York State
and federal law to make their own medical decisions. It is designed as
an aid to teenagers and the professionals – social workers, counselors,
teachers, and medical providers – who work with young people.
Frequently, professionals can encourage communication between
young people and their parents, helping adolescents find needed
support as they confront health issues. When teenagers cannot or
will not speak to their parents, professionals can encourage them
to seek the support of other adults – family members, friends,
social workers – rather than face their health problems alone. By
publicizing information about adolescents’ rights, however, we hope
to encourage teens to seek medical care even when they cannot or
will not confide in adult family members or friends. We also hope to
encourage professionals to respect the rights of adolescents and
provide care when a minor does not seek adult involvement. After
all, health care without adult involvement is generally preferable to
no health care.
INTRODUCTION
9Teenagers, Health Care, and the Law
The booklet is set up as a reference guide to the situations young
people often encounter when seeking health care.
Section I defines the basic terms used to describe
adolescents’ legal rights.
Section II explains the general rules about minors’ rights
to consent to health care and who – such as parents and
guardians – can consent when a minor can’t. Section II also
discusses adolescents who are married, pregnant, parents,
emancipated, or incarcerated and therefore may have the
right to make some or all of their own health care decisions.
Section III outlines the general rules regarding confidentiality
in medical care, and those situations where confidentiality
may be compromised.
In specific areas of health care, adolescents often can make
their own health care decisions. Section IV sets forth the
types of care that capable adolescents can generally obtain
without parental consent. This section clarifies a teen’s rights
to consent to treatment relating to pregnancy, sexually
transmitted infections (STIs), HIV and AIDS, sexual assault,
substance use, and mental health. This section also discusses
transgender-related health care, although minors usually
cannot consent to this on their own.
Section V discusses the specific challenges faced by minors
in foster care who seek confidential treatment.
Section VI provides an overview of public health insurance
programs available to minors.
10 Teenagers, Health Care, and the Law
At many points, a hypothetical question is offered to illustrate a
scenario that might arise concerning a particular topic. We hope
that the answers will further clarify the issues. The endnotes at
the back of the book offer more detailed information and provide
relevant legal citations.
This booklet, however, cannot take the place of individualized legal
advice. A young person or provider may need to consult an attorney
to address complex legal issues concerning health care.
We hope this booklet will assist in educating adolescents and
providers about minors’ rights, and that it will ultimately help young
people get the health care they need and deserve.
11Teenagers, Health Care, and the Law
INTRODUCTION
I.
BASIC
DEFINITIONS
13Teenagers, Health Care, and the Law
I. BASIC DEFINITIONS
Who Is a Minor?
The law defines a minor as a person under the age of 18.
3
A minor is
denied certain rights under the law, such as the right to vote or run
for elected office. A minor is also entitled to additional protection,
such as financial support by a parent.
4
Q
Today is Aisha’s 18th birthday. Is she a minor?
A
No. She is no longer under the age of 18, so she
is no longer a minor.
Who Is an Adult?
Legally speaking, the term “adult” refers to anyone 18 years of age
or older.
What Is Informed Consent?
“Informed consent,” also referred to in this booklet as “consent,”
means that the patient voluntarily agrees to a proposed treatment.
In order to consent, patients must have the capacity to consent,
meaning they must understand:
• Their condition, and
• The nature and purpose of the proposed and alternative
treatments, and
• The predictable risks and benefits of the proposed
and alternative treatments (including the option of no
treatment at all).
5
14 Teenagers, Health Care, and the Law
A patient who does not understand all of the above cannot give
informed consent. Adults are generally presumed to have the
capacity to consent.
6
A health care provider must obtain informed consent before providing
medical treatment, unless it would not be reasonable to do so, as is
the case in some emergencies.
7
Consent may be given orally or
through the use of a written form, and may sometimes be inferred
from a patient’s conduct (for example, holding out an arm for a shot).
8
A health care provider who fails to obtain consent before treating a
patient may be liable for malpractice (subject to exceptions)
9
or
assault and battery.
10
When a person has the capacity to consent to a health service, that
person also has the right to refuse to consent to a health service.
11
Accordingly, a person who understands his or her condition and the
nature, risks, and benefits of the proposed and alternative treatments
cannot be forced to undergo a treatment the patient has declined.
Q
George is an adult with cognitive impairments. Can he
consent to his own care?
A
Maybe. If the doctor reasonably determines that George
understands his medical condition and the consequences
of various treatments, the doctor can treat George based
on George’s own consent, unless a court has appointed
someone else to make health care decisions for George.
If the doctor believes George lacks the ability to give
informed consent, the law sets out a procedure to follow
to ensure that George can still get the care he needs.
12
15Teenagers, Health Care, and the Law
What Is Confidentiality?
Confidentiality, with regard to health care, means that information
about treatment, such as medical records, cannot be disclosed or
released without the permission of the person who consented to
the care.
13
Q
Sarah asks her doctor for a pregnancy test. Her boyfriend
later calls the doctor to find out the results for her. Can the
doctor disclose the results to Sarah’s boyfriend?
A
No, not without Sarah’s permission. The information is
confidential and cannot be disclosed to anyone but Sarah.
A health care provider must
obtain informed consent
before providing medical
treatment, unless it would not
be reasonable to do so, as is the
case in some emergencies.
I. BASIC DEFINITIONS
II.
CONSENTING
TO HEALTH CARE
17Teenagers, Health Care, and the Law
II. CONSENTING TO HEALTH CARE
Minors and Consent
A minor’s right to consent to health care depends on two distinct
questions. First, does the minor have the legal right to consent,
either because the minor is part of a group to whom the law gives
this right (e.g., married minors, minors who are parents, minors in
the military) or because the minor is seeking a type of health care
for which the law allows a minor to give independent consent (e.g.,
reproductive health care, certain mental health services)? Second,
does the minor have the capacity to consent, meaning the maturity
and intelligence to assess the risks and benefits of proposed
treatments and alternatives, so as to give informed consent? These
two aspects of consent together are prerequisites to the treatment of
minors based on their own decisions. In order to authorize treatment
independently, a minor must have both the legal right to consent
and the capacity to give informed consent. If either of these is
missing, the consent of a legally responsible adult will be necessary.
This booklet focuses mainly on a minor’s legal right to consent.
When a passage says minors “can consent” or “can make their
own health care decisions,” it means that the minor has the legal
right to consent. Remember, however – whether this is separately
mentioned or not – that the minor must also have the capacity to
consent before independently authorizing health treatment.
There is no minimum age requirement for giving informed consent.
Some young minors may have the capacity to consent, while older
minors may not. When a minor is consenting on his or her own, a
health care provider should document in the medical record how
the provider determined the minor’s capacity to consent.
18 Teenagers, Health Care, and the Law
Under New York law, the following categories of minors may legally
consent to all, or much, of their own health care:
• Pregnant teens,
• Minors who are parents,
• Married minors,
• Minors serving in the armed forces,
• Emancipated minors, and
• Incarcerated minors.
In addition, a minor who understands the risks and benefits of
proposed and alternative treatments can consent to the following
types of care:
• Reproductive health care, including family planning
(i.e., birth control, including emergency contraception),
abortion, pregnancy/prenatal care, care during labor and
delivery, and testing and treatment for sexually transmitted
infections, including HIV;
• Certain mental health services;
• Certain alcohol and drug abuse services; and
• Sexual assault treatment.
Providers also can treat minors in an emergency without
parental consent.
When treating minors who do not fit into one of the categories
described above or when providing other types of care, health
care providers must ordinarily obtain parental consent.
19Teenagers, Health Care, and the Law
Q
Dana is 17. She goes to her doctor to be treated for genital
herpes. Does the doctor need to get Dana’s parents’
permission before treating her?
A
No. A minor has the legal right to consent to health care
for sexually transmitted infections. So long as Dana has
the capacity to consent, meaning that she understands the
risks and benefits of the proposed and alternative
treatments, parental consent is not required.
Adults Who Can Consent on Behalf of a Minor
When a minor cannot consent to medical care, the minor can
obtain services only with the consent of another person, such
as a parent or guardian who can lawfully give such consent.
The following adults may consent to health care for a minor.
Parents
Generally, parents have the right to make medical decisions for their
minor children.
14
A parent retains this right even when the parent has
decided voluntarily to place the child in foster care.
15
Alternatively, a
parent whose child is voluntarily placed in foster care may (but need
not) delegate medical decision-making authority to the local
commissioner of social services.
16
II. CONSENTING TO HEALTH CARE
20 Teenagers, Health Care, and the Law
Q
Patricia, 34, has decided that she cannot care for her
14-year-old son, Eric, until she deals with her drinking
problem. She places Eric in foster care. Eric needs to
be treated for strep throat. Who can consent to Eric’s
health care?
A
Because she has voluntarily placed Eric in foster care,
Patricia can consent to her son’s medical treatment, or she
could delegate the responsibility for consenting to his care
to the local commissioner of social services.
Guardians and Parental Designees
When a minor has a legal guardian, the guardian may consent to
the minor’s health care.
17
Also, a parent may designate another
person as a “person in parental relation” to a minor for a period
not exceeding six months. Such a designee may consent to a
minor’s health care, subject to certain limitations.
18
The Commissioners of Health or Social Services
If a family court judge determines that a child has been abused or
neglected and takes the child into court custody, or if a child has
been removed from his or her parents and placed in the local
commissioner’s custody, the local commissioner of social services
or the local commissioner of health may consent to health care
for the child.
19
21Teenagers, Health Care, and the Law
Q
Sisters Jayna and Delia have been removed from their
parents based on a judicial finding of neglect and placed
in foster care. Neither of the girls has ever had dental
care, and both need cavities filled. Who can consent to
this treatment?
A
Because a court has placed the children in foster care, the
local social services commissioner or health commissioner
can consent to dental care for Jayna and Delia.
Consent for Vaccinations
An adult caring for a child – a parent, legally appointed guardian,
custodian, grandparent, adult sibling, adult aunt or uncle, or
another adult who has a parent’s written authorization to consent
to the child’s care – may consent to a child’s vaccination,
20
even if
this adult would not necessarily be able to consent to other health
care for the minor.
Q
Tom is six years old and needs a tetanus shot. His parents
are out of town, and he is staying with his aunt and uncle.
Can they consent to the vaccination for him?
A
Yes. Even though they are only caring for him temporarily,
they can consent to his vaccination, unless they have
reason to believe that his parents would object.
II. CONSENTING TO HEALTH CARE
22 Teenagers, Health Care, and the Law
The human papilloma virus (HPV) vaccine is an exception. Minors
may consent to this vaccine on their own.
21
Legal Status and Minors’ Rights to Consent to Care
New York law grants certain minors the right to consent to all or most
health care for themselves. This is true, for example, when a minor
is married, pregnant, parenting, serving in the military, or otherwise
emancipated. As with anyone seeking treatment, a minor who cannot
adequately understand the risks and benefits of treatment cannot
consent to care, regardless of legal status.
Married Minors
Minors who are or have been married may consent to their own
medical, dental, health, and hospital care without the consent of
any other person.
22
Minors Who Are Parents
In New York State, parents, regardless of age, may make all decisions
relating to medical, dental, health, and hospital services for themselves
23
and their children.
24
Q Rosa, who is 16, and her two-year-old son, Manuel, both
catch the flu. Must Rosa involve her parents in order to get
treatment at the doctor’s office?
A No. As a parent, Rosa can consent to medical services for
herself and her child.
23Teenagers, Health Care, and the Law
Pregnant Minors
A pregnant minor can consent to medical, dental, health, and hospital
services relating to prenatal care.
25
No court has explained the scope
of services that may be considered “relat[ed] to prenatal care.”
Given the courts’ long-standing deference to physicians in such
matters,
26
however, it is safe to assume that if a physician or other
qualified health care provider concludes, in the exercise of sound
professional judgment, that a service is related to prenatal care, the
provider may offer the service based on the minor’s consent.
New York law grants certain
minors the right to consent
to all or most health care for
themselves. This is true, for
example, when a minor is
married, pregnant, parenting,
serving in the military, or
otherwise emancipated.
II. CONSENTING TO HEALTH CARE
24 Teenagers, Health Care, and the Law
Q
Priti, who is 15 and pregnant, develops serious dental
problems during her pregnancy. May Priti consent on her
own to dental care?
A
If Priti’s dentist concludes that her dental problems are
related to her pregnancy (as is often the case), the dentist
may treat Priti based on her own consent.
Emancipated Minors
While there is no statutory definition of “emancipation” in New York,
courts have defined “emancipation” as “the renunciation of legal
duties by a parent and the surrender of parental rights to a child.”
27
Parents in this state have a continuing responsibility to support
their child financially until the child reaches the age of 21, unless
the child has become emancipated before turning 21.
28
Once a child
is emancipated, the parent no longer has an obligation to support
the child.
29
25Teenagers, Health Care, and the Law
Under the common law, emancipation occurs when the minor:
• Attains economic independence from his or her parents
through employment;
• Enters into military service;
• Marries; or
• Withdraws, without cause, from parental supervision and
control, in which case a court may decide that “constructive
emancipation” has occurred.
30
When a minor is married or serving in the military, New York State
law makes clear that the minor is emancipated and may therefore
consent to health services independently. When a minor has been
constructively emancipated or has attained economic independence,
however, a health care provider may require proof of emancipation.
In these circumstances, youth legal services organizations, such as
The Door (https://www.door.org/), assist minors in preparing letters
of emancipation, whereby minors attest to living apart from their
parents and supporting themselves.
31
These letters set out the
factual basis for constructive emancipation, and health care providers
may be willing to treat a minor who presents such a letter based on
the minor’s own consent.
32
Note, however, that these letters of
emancipation are not legally binding; it remains in the discretion of
the health care provider to decide whether to treat a minor based
on such a letter, and a court could later conclude that the minor
was in fact constructively emancipated, or not.
33
II. CONSENTING TO HEALTH CARE
26 Teenagers, Health Care, and the Law
Q
Ron, 17, has been living on his own for two years. He is
financially self-supporting and lives in an apartment with
roommates. He is not in regular communication with either
of his parents. He has had serious allergies all his life and
has recently learned that his chronic congestion is
aggravated by cysts in his sinuses. May Ron consent to
surgery to remove the cysts?
A
Probably. The doctor could reasonably conclude that Ron
is emancipated and therefore entitled to make medical
decisions for himself. If the doctor were hesitant, Ron
might seek the assistance of an organization that could
help him prepare a letter of emancipation to further assure
the doctor of his emancipated status.
Incarcerated Minors
Minors who are incarcerated in facilities under the control of the
Department of Corrections may generally consent on their own to
routine medical, dental, and mental health services. Such care is
defined to include “any routine diagnosis or treatment, including
without limitation the administration of medications or nutrition, the
extraction of bodily fluids for analysis, and dental care performed
with a local anesthetic.”
34
In addition, incarcerated minors may
consent on their own to their immunization against hepatitis B.
35
When a court is committing a minor under 18 years old to the
Department of Corrections, the judge must ask whether the parents
or legal guardian will give the minor permission to consent to routine
health care.
36
Even if no parent or guardian gives permission,
however, the law provides that the court order committing the
minor to the Department of Corrections will be treated as giving
the minor the right to consent to routine services.
37
So long as an
incarcerated minor is under 18, a parent or guardian may file a
27Teenagers, Health Care, and the Law
motion objecting to any routine health service to be provided to the
minor based on the minor’s own consent.
38
The law explicitly
recognizes that incarcerated minors retain the right to “consent on
[their] own behalf to any medical, dental or mental health service
and treatment where otherwise authorized by law to do so” (as with
most reproductive health and many mental health services).
39
These same rules apply to minors who have been found delinquent
and placed with the Office of Children and Family Services, a social
services district, or the division for youth.
40
Mature Minors
While New York grants certain minors the right to consent to health
care, as described above, New York courts have not yet declared
that every mature minor has such a right. Many states have adopted
a “mature minor” doctrine or statute, allowing any minor with the
capacity to understand the risks and benefits of proposed and
alternative treatments to consent or refuse consent to such treatment.
41
New York has no such statute, and the only court to have directly
considered the issue declined to decide whether the mature minor
doctrine applies in this state.
42
While several guidance documents
on medical ethics and practice advise practitioners to treat mature
minors based on their own consent,
43
New York law has not yet
followed this path.
II. CONSENTING TO HEALTH CARE
III.
CONFIDENTIALITY
IN HEALTH CARE
29Teenagers, Health Care, and the Law
III. CONFIDENTIALITY IN HEALTH CARE
General Confidentiality Rules
Unless otherwise specified by law, a health care provider may not
reveal confidential information about a patient without the patient’s
permission.
44
When the patient is a minor, the right to control the
disclosure of health information generally follows the right to consent
independently to the underlying health service that is the subject of the
information. Federal law gives a minor the right to authorize the
disclosure of health information if the minor consented to the health
service in accordance with state law.
45
In addition, when a parent
agrees that his or her minor child can have a confidential relationship
with a health professional, the minor is entitled to control the health
information pertaining to any service provided within the scope of that
confidential relationship.
46
Generally speaking, therefore, when a
minor consents to health care, the information relating to that
care may not be disclosed without the minor’s permission.
New York law reinforces this general federal rule in an important respect.
State regulations create a Statewide Health Information Network,
an electronic information-sharing platform for health care providers,
health plans, governmental entities, and others. The state regulations
governing the network define “minor consent patient information” as
“patient information relating to health care of a patient under 18 years
of age for which the patient provided his or her own consent as
permitted by law, without a parent’s or guardian’s permission.”
47
The state regulations go on to say that no entity participating in the
Statewide Health Information Network may “disclose minor consent
patient information to the minor’s parent or guardian without the
minor’s authorization.”
48
Thus, in New York, a health care provider,
plan, or government entity that participates in the Statewide
Health Information Network (as most do or soon will) needs the
written authorization of a minor patient before disclosing
information to a parent about a health service for which the
minor gave legal, independent consent.
49
30 Teenagers, Health Care, and the Law
Violation of the federal regulations can result in the imposition of
civil monetary penalties (as well as other penalties available under
other law) by the agencies charged with enforcement.
50
Breaches
of the rules governing the Statewide Health Information Network
can lead to warnings, restrictions on participation in the Network,
or fines.
51
Violating other, more general state confidentiality rules
constitutes professional misconduct and may be punished by fine,
reprimand, or revocation of a license.
52
Additionally, a patient may
sue a health care provider for damages for breaching his or her
confidentiality in violation of New York law.
53
When it is the parent, and not the minor, who consents to the minor’s
care, information about the treatment usually may be disclosed to
the parent. Sometimes, however, the law requires or allows a health
care provider to withhold information about a minor patient from
the parent even when a parent consented to the initial treatment.
• A health care provider must not reveal information to a minor
patient’s parents if the provider determines that disclosure
would be detrimental to the provider’s relationship with the
minor, to the care and treatment of the minor, or to the minor’s
relationship with his or her parents.
54
• A provider may withhold information from a minor patient’s
parents if the minor is over the age of 12 and objects to the
disclosure. In such cases, the health care provider should
rely on his or her judgment as to whether to disclose the
information.
55
• A provider may withhold information from a minor patient’s
parents if (i) the provider reasonably believes the minor is
subject to abuse or neglect by the parent, (ii) disclosure could
endanger the minor, and (iii) the provider determines in the
exercise of professional judgment that it is not in the best
interest of the minor to involve the parent.
56
31Teenagers, Health Care, and the Law
Q
When James turns 13, his pediatrician, Dr. Song, has a talk
with him and his mother, and they all agree that James will
have a confidential relationship with Dr. Song going
forward: James will be allowed to decide, in consultation
with Dr. Song, when to involve his mother in health care
decisions. When James is 16, he sees Dr. Song about a rash
in his genital area that appeared after he started wearing a
cup for hockey practice. Dr. Song recommends a prescription
for an antifungal cream. James does not want to consult his
mother about this. Must Dr. Song get consent from James’s
mother before prescribing the cream?
A
No. Because James’ mother assented to the confidential
relationship between James and Dr. Song, Dr. Song can rely
on James’s informed consent and need not get prior
consent from his mother.
57
NOTE: Health care confidentiality rules generally apply only to
health care professionals and the individuals they supervise.
58
These rules do not apply to people who obtain confidential health
information in nonprofessional capacities, such as friends, family
members, neighbors, and landlords.
In certain narrow circumstances, the law may require or allow a
health care provider to breach confidentiality and disclose
information to specified person(s) or institution(s). However, even
under these circumstances, other guarantees of privacy remain
and general disclosure is not allowed. (See below, When Otherwise
Confidential Care May Not Be Confidential.)
III. CONFIDENTIALITY IN HEALTH CARE
32 Teenagers, Health Care, and the Law
Schools and Confidentiality
The law governing the confidentiality of school health records is
unsettled. Federal and state laws generally give parents the right
to access the “education records” of their minor children.
59
Education records are broadly defined to include those containing
“information directly related to a student” and “maintained by an
educational agency or institution or by a person acting for such
agency or institution.”
60
The U.S. Supreme Court has interpreted
this definition to refer to records kept in a central location or a
permanent secure database by “agents of the school, such as
teachers, administrators, and other school employees.”
61
It is unclear how this definition applies to health records maintained
at a school. Some records, including health screening and immuniza tion
records collected and kept as a condition of enrollment, must be
disclosed to parents upon their request.
62
Other records may be
subject to mandatory disclosure to parents or not, depending on
the context. Given the Supreme Court’s interpretation of the
relevant federal law, it appears to make a difference whether the
health records at issue are stored in the school’s central files or
database and maintained by school employees. Private medical
records, separately maintained by school-based health
professionals, may be beyond the reach of the federal law.
63
School-based health care providers would do well to check
with counsel before denying or releasing sensitive health
information to parents. Such providers should also let students
know whether the information they provide will be kept confidential,
and students should ask about confidentiality protections, especially
if they have particular concerns in this regard.
In-school programs aimed at preventing or treating drug and alcohol
abuse are in a special category. Those subject to federal regulation
or receiving federal assistance (whether directly or indirectly) are
33Teenagers, Health Care, and the Law
bound by federal confidentiality requirements.
64
These requirements
permit disclosure only with the prior written consent of the patient
except in narrow circumstances such as to avert a medical
emergency or to comply with a court order.
65
Other adults with whom a minor may interact at school – such as
teachers, guidance counselors, social workers, and coaches – are
not necessarily required to keep conversations confidential. However,
professional ethics and student privacy rights weigh against disclosing
to third parties highly personal information, such as information
about a student’s pregnancy, sexual orientation, or mental health.
66
As with other licensed health professionals, school health care
Some records, including health
screening and immuniza tion
records collected and kept as
a condition of enrollment, must
be disclosed to parents upon
their request.
providers who reveal confidential information without permission
may be subject to professional discipline and may also be sued for
illegal disclosure.
67
Schools that disclose confidential student
records without the written consent of the student’s parents also
face loss of federal funding.
68
III. CONFIDENTIALITY IN HEALTH CARE
34 Teenagers, Health Care, and the Law
Q
Phuong, a high school junior, complains to the school nurse
that she has a sore throat and cannot eat. Phuong’s parents
signed a consent form at the beginning of the school year
authorizing the nurse to treat Phuong. Can the nurse reveal
this information to Phuong’s parents? To the principal?
A
The nurse may and, on their request, probably must
disclose the information to Phuong’s parents because of
their rights to access their child’s “education records,”
including those health records maintained in a central
school location or database by school employees.
However, the medical information should not be disclosed
to the principal without Phuong’s parents’ consent.
Q
In a counseling session with the school social worker, Jessi
reveals that she is a lesbian. She asks the social worker
not to tell anyone. Can the social worker “out” Jessi to her
parents?
A
The professional obligation to maintain the confidences
of clients would normally prevent the social worker from
reaching out affirmatively to inform Jessi’s parents, but if
the social worker makes notes of the information, which
are then stored in the school’s permanent files, Jessi’s
parents would probably have a right to view those records.
35Teenagers, Health Care, and the Law
Q
Diana, 16, gives her gym teacher a note requesting that
she be excused from gym because she is pregnant. Is the
teacher bound by confidentiality?
A
Maybe. Generally, teachers do not have the same
confidentiality obligations as health professionals.
Depending on the circumstances, however, disclosure
might violate professional ethics and/or the student’s
privacy rights. It would be best for the teacher to talk to
the student about whether she has the support of her
parents or other adults regarding the pregnancy. If the
student needs additional support, the teacher might work
with her to approach social workers, counselors, or
others trained to advise students in such situations.
Some schools reach beyond their disclosure obligations to create
policies that compromise students’ confidentiality. For example,
some schools ask school nurses, psychologists, and social workers
to report a student’s pregnancy to her parents and/or school officials.
69
Such policies put school-based health care providers at risk of
committing professional misconduct by affirmatively revealing students’
confidential communications. A school-based health care professional
asked to do this should consult with an attorney.
When Otherwise Confidential Care May Not
Be Confidential
In certain situations, a health care provider may not be able to keep
information relating to a minor’s care completely confidential.
Sometimes, the law requires a health care provider to report patient
information to a government agency,
70
and in other situations, a
provider may be compelled to reveal a confidential communication
in a legal proceeding.
III. CONFIDENTIALITY IN HEALTH CARE
36 Teenagers, Health Care, and the Law
This section identifies some of the situations in which health care may
not be entirely confidential. In talking about issues of confidentiality
with any patient, medical ethics dictate that providers discuss possible
legal limitations on the confidential nature of their relationship.
71
Child Abuse Reporting
What Is the Child Abuse Reporting Law?
New York’s mandatory child abuse reporting law carves a narrow
exception into a professional’s duty of confidentiality to minor patients.
This law requires all “mandated reporters” – including health care
providers and school officials
72
– to make a report to the State
Central Register of Child Abuse and Maltreatment when they have
a reasonable suspicion that a minor is abused or neglected by a
parent, guardian, custodian (any person regularly found in the
child’s household),
73
or other person legally responsible for the
child’s care.
74
A mandated reporter who works in a school, institution,
facility, or agency must personally report suspected child abuse to the
State Central Register and immediately inform the director of his or
her place of employment.
75
A report will trigger an investigation of
the parent or other responsible person. The patient’s or student’s
permission is not required.
A caregiver is guilty of abuse
76
or neglect
77
if the caregiver directly
harms a child or acts in a way that allows
78
a child to be physically
or emotionally harmed or sexually abused.
The child abuse reporting law does not automatically apply
whenever a child is a victim of a crime. The appropriateness of
a child abuse report depends on whether the wrongdoer is legally
responsible for the child’s care. Further, reports to the Central Register
can trigger an investigation only of the minor’s parent(s) or other
custodian or caregiver. Child protective services agencies are not
37Teenagers, Health Care, and the Law
authorized to investigate crimes committed against children by
third parties who are not legally responsible for the minor’s care.
When a mandated reporter has a reasonable suspicion of child
abuse, a failure to report can lead to liability.
79
In contrast, the law
immunizes mandated reporters from liability when they make a
report in good faith, without willful misconduct or gross negligence.
80
NOTE: A separate law governs physical or sexual abuse that is
committed against a student by a school employee or volunteer.
School employees must report any allegations of such abuse to
school authorities, not to the Central Register.
81
How Might the Reporting Law Present a Confidentiality
Problem for Non-Abused Minors?
Some health care providers have questioned whether they must
make a report of child abuse or neglect when they learn that a
parent is aware of and has not taken steps to prevent an underage
patient’s voluntary sexual activity.
These questions arise because the law provides that caregivers who
allow a sexual offense to be committed against a child may be
considered abusive.
82
According to New York criminal law, any minor
age 16 or younger who engages in vaginal, oral, or anal sex is a victim
of “sexual misconduct,” even when the activity is consensual.
83
Therefore, when parents know that their underage child is having
sex and do nothing to stop it, the question is whether the parents
are “allowing” a sexual offense to be committed against their child.
New York courts have declined to give the child abuse statute so
broad and untenable a reading, refusing to countenance child abuse
charges against the parents of every sexually active minor in the state.
84
Instead, the courts have concluded that an abuse charge based
on underage sexual activity “must be limited to those parents
III. CONFIDENTIALITY IN HEALTH CARE
38 Teenagers, Health Care, and the Law
who fail to intervene in forced sexual relationships of which they
have personal knowledge.”
85
Therefore, it is not child abuse for a
parent to know that a minor child has chosen to be sexually active
and to do nothing to stop it. Of course, this does not apply where
the teenager is having sexual relations with a family member or
where the sex is coerced.
Mandated reporters should try to understand the circumstances that
led to a younger minor’s pregnancy, STI, or other indication of sexual
activity. A report of child abuse or neglect is warranted where the minor
was coerced to have sex or subjected to sexual abuse, and a parent
or other caregiver knew or should have known of the coercion or abuse
and did not take reasonable steps to prevent it. Where the minor is
immature and the minor’s more mature sexual partner seems to wield
outsize influence or power over the minor, a health care provider may
conclude in the exercise of appropriate professional judgment that the
relationship is coercive or abusive. In that case, a parent’s acquiescence
to the relationship would be reportable. A report based on a parent’s
assent to a minor’s consensual sexual activity is unwarranted,
however, if the minor’s sexual relationship is voluntary.
Q
Daniel, who is 16 years old, is planning to make an appointment
with a clinic to check for STIs. He is sexually active with his
boyfriend, who is 19. Should Daniel be concerned that the
clinic might report his case to child protective services because
he is technically a victim of the crime of sexual misconduct?
A
The law is on the side of Daniel’s care remaining confidential.
Courts have determined that parents are not guilty of abuse
merely for knowing that their adolescent son or daughter is
having consensual sexual relations. In addition, Daniel’s
boyfriend is not a proper subject of a child abuse report –
only parents, custodians, or guardians are.
39Teenagers, Health Care, and the Law
Q
Must Daniel reveal his boyfriend’s name if his health care
provider asks?
A
No. Daniel can keep this information private.
Q
What if a minor who is a few years younger than Daniel
seeks care related to sexual activity?
A
Depending on the particular minor’s maturity, the minor’s
partner’s age, and other circumstances of the sexual
relationship, some providers may determine that a younger
minor has been forced or coerced into a sexual relationship
with an adult. In that case, a provider with a reasonable
suspicion that a parent or legally responsible adult has
allowed the sexual abuse to occur, and thus abused or
neglected the child, is obligated to report the parent.
Sexually Transmitted Infection Reporting
Health care providers are obligated to report to county and/or
state departments of health all cases of syphilis, chlamydia,
and gonorrhea. Positive HIV test results are also subject to
reporting. For a detailed discussion of these laws and how they
relate to patient confidentiality, see Section IV.
Prevention of “Harmful Acts” to Third Parties
Psychologists, psychiatrists, and rape crisis counselors may
breach confidentiality to notify an endangered person and/or
III. CONFIDENTIALITY IN HEALTH CARE
40 Teenagers, Health Care, and the Law
the police if a patient presents a serious and imminent danger
to another person.
86
However, notification is not mandatory.
87
Court Proceedings
As a general rule, health care providers may not disclose confidential
medical information without the patient’s consent. This rule extends to
court proceedings, protecting health professionals from having to
testify about confidential information they receive from their patients
or clients. Such testimonial privileges apply to communications
between a patient and a physician, registered professional nurse,
licensed practical nurse, dentist, podiatrist, chiropractor,
88
psychologist,
89
social worker,
90
rape crisis counselor,
91
medical
corporation, professional service corporation, or university faculty
practice.
92
However, even these providers may be compelled to
testify in court or release confidential records in connection with
child abuse or neglect proceedings
93
and when a patient under the
age of 16 has been the victim of a crime.
94
NOTE: Although providers have an affirmative obligation to report
reasonable suspicions of child abuse, there is no such obligation
regarding other crimes committed against a minor patient, with
the exception of mandated reports of gunshot and life-threatening
stab wounds.
95
In fact, making a police report without the patient’s
consent would violate confidentiality and constitute professional
misconduct.
96
Confidentiality Among Health Care Providers and in the
Insurance and Billing Process
When information is shared among health care providers or
between providers, health plans, and insured individuals,
confidentiality can be compromised. Problems can arise, for
example, when parents seek access to their children’s electronic
health records for a permissible purpose, but the records include
41Teenagers, Health Care, and the Law
what should be confidential information; breaches can also occur
when bills or explanations of benefits are sent home.
Under New York law governing the Statewide Health Information
Network – which permits the sharing of electronic health records
among providers, insurers, government agencies, and others
– parents may authorize participants in the Network to view minors’
health records.
97
Parents have this authority even when a minor’s
health record pertains to confidential health services to which the
minor consented and even though parents themselves are not
permitted to review such records without the minor’s authorization.
98
The regulations include exceptions for minors who are emancipated
and when federal or state law or regulation requires the minor’s
authorization for the disclosure.
99
The federal HIPAA regulations, in contrast, prevent parents from
authorizing the release of a minor’s health care information and
give that right instead to minors themselves when the information
pertains to a service to which the minor gave independent legal
consent.
100
It would seem that the federal regulation entitling
minors to control health information about services to which they
have consented requires the minor’s authorization for disclosure
of the information to Network participants, and that the federal
regulation therefore overrides the New York regulation entitling
parents to authorize such disclosures. Despite the NY regulation,
therefore, it would be advisable for providers to get the consent
of the minor before disclosing to Network participants health
information pertaining to a service to which the minor gave
independent, legal consent.
This situation is confusing enough that mistakes may well occur.
III. CONFIDENTIALITY IN HEALTH CARE
42 Teenagers, Health Care, and the Law
Q
Jade’s father has given Jade’s pediatrician, Dr. Samedi,
written authorization to access all health information in
the Network about Jade. Under the New York regulations,
this general authorization appears to be sufficient to
enable Dr. Samedi to see records about Jade’s visit to a
reproductive health clinic to be tested and treated for an
STI, even though Jade consented to that service and her
father is not supposed to see the related information. If
Jade’s family is moving to another state, and her father
asks Dr. Samedi for a paper copy of Jade’s entire health
record to give to her new pediatrician, should Dr. Samedi
turn over the records?
A
Not in their entirety. Dr. Samedi has an obligation not to
give Jade’s father the part of the record pertaining to the
STI treatment to which Jade consented. But because that
information is part of Jade’s lifelong medical record,
because the New York regulations appear to give Dr.
Samedi access to that record based on Jade’s father’s
general consent, and because the regulations include no
mandatory provisions for segregation or special treatment
of sensitive health information,
101
the STI record could
inadvertently end up in the hands of Jade’s father.
43Teenagers, Health Care, and the Law
A minor’s best workaround may be to ask providers of sensitive
services in fields such as reproductive health, mental health,
and substance abuse treatment if their patient information can
be kept out of the Statewide Health Information Network. The
New York regulations allow, but do not require, the “qualified
entities” that manage the Network to provide a means for patients
to withhold their health information.
102
If a minor sees a health care
provider whose “qualified entity” offers this option, it may be
possible to keep confidential information out of the Network.
Minors seeking care through the Medicaid program face other
issues with regard to electronic information sharing; these issues
are discussed more fully in the public insurance section of this
booklet (Section VI).
The medical billing process can also lead to breaches of
confidentiality,
103
and these breaches may affect young adults
because New York law permits parents to cover their otherwise
uninsured children up to age 29.
104
Billing practices can lead to
unintended disclosures in a number of ways. For example, a state
law requires managed care plans to notify the patient in writing and
by phone regarding initial coverage determinations as to services
that require preauthorization.
105
It is therefore essential that
providers find out whether the relevant HMOs require preauthorization
and discuss the possible consequences with the patient.
There is no perfect solution to the problem of confidentiality in
the medical billing process, but to minimize the risk of involuntary
disclosure to parents, a provider can:
• Refer a minor patient for free care when available and advise
the minor that the referral may ensure confidentiality that
might otherwise be breached in the billing process;
III. CONFIDENTIALITY IN HEALTH CARE
44 Teenagers, Health Care, and the Law
• Discuss insurance, medical and lab billing, and alternative
forms of payment with the minor patient and inform the
patient if the billing process may compromise confidentiality;
• Warn a patient when a health service being sought requires
preauthorization and will trigger a determination notice by
mail and telephone to the minor’s residence;
• Ask the minor patient for alternative contact information if
the patient does not want to be contacted at home; federal
and state regulations mandate that health care providers
honor reasonable requests to alter the manner in which the
provider communicates with the patient, and require
insurance companies to honor requests to send information
to a different address if disclosure of the information could
endanger the patient;
106
• Request that an insurance plan require prenotification
instead of preauthorization for a procedure, thereby avoiding
mandatory calls and mailings to the household;
• Educate the billing department about minors’ rights to
confidentiality and be sensitive to the diagnosis and
treatment stated on bills that are sent home; and
• Consult with legal counsel before releasing any medical
records that might result in harm to the adolescent patient.
A minor receiving confidential care should be aware that billing may
lead to inadvertent breaches of confidentiality and should always:
• Ask providers whether treatment bills, lab bills, or other
documents will be sent home;
• Discuss using an alternative contact address for the purposes
of such documents; and
• Ask about sliding pay scales and cash payments that may
reduce insurance and other billing problems.
45Teenagers, Health Care, and the Law
Q
Jose, who is 16, receives treatment for a sexually transmitted
infection. Because of the type of treatment, he does not
need parental consent and the care is confidential. He
decides to pay for the treatment by using his parents’
insurance plan. Will information about his treatment be
disclosed to his parents through the billing process?
A
Possibly. The health care provider cannot disclose the
information to Jose’s parents. However, there is a risk of
limited disclosure through the insurance process. By
asking the insurance company about its notification
procedures, both patient and provider can identify and
respond to any risks.
III. CONFIDENTIALITY IN HEALTH CARE
IV.
TYPES OF HEALTH
CARE THAT MINORS
CAN RECEIVE
WITHOUT PARENTAL
CONSENT
47Teenagers, Health Care, and the Law
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
Birth Control
Birth control is used to prevent pregnancy and to address a variety
of health conditions. Contraceptives come in many different forms,
including hormone-based birth control pills, intrauterine devices,
implants, shots, condoms, diaphragms, and spermicides.
Consent and Access
A minor may consent to confidential contraceptive services and
prescriptions without parental involvement. The federal constitutional
right to privacy underlies the right of adults to receive confidential
contraceptive services.
107
The U.S. Supreme Court has extended this
privacy right to minors in matters relating to the use of contraception.
108
For this reason, the government cannot restrict a minor’s access to
contraception without a compelling reason.
109
There are no such
restrictions under New York law. Therefore, a minor’s right to
confidential contraception without parental notification or
consent is protected in New York.
Moreover, when a minor’s health care is publicly funded, his or her
access to contraceptive services is further protected. Two federal
programs require that family planning services and supplies be
provided confidentially to all eligible recipients, including sexually
active minors: Medicaid
110
and Title X of the Public Health Service
Act.
111
Thus, if a clinic or hospital receives funding under either of
these programs, it must offer a broad range of contraceptives to
minors based on their own consent.
Even when a court places a minor in a religiously affiliated foster
care agency, the minor must be given access to reproductive health
information and services, including contraception.
112
48 Teenagers, Health Care, and the Law
Confidentiality
As discussed above, a minor is entitled to confidential family planning
services without parental involvement.
113
Furthermore, courts have repeatedly construed the confidentiality
safeguards of the Medicaid and Title X statutes to prohibit parental
consent or notification requirements for teenagers entitled to family
planning services under these programs.
114
Q
A 14-year-old girl, Carla, wants to get a prescription for
birth control pills. Does she need parental consent?
A
No. Prescription contraceptives, like all other forms
of contraception, must be made available based on
the independent consent of a minor with the capacity
to understand the risks and benefits of the prescribed
drug and its alternatives.
Exception: Sterilization
Even though sterilization is a form of birth control, the laws governing
sterilization are much stricter than those applicable to other birth
control services. Neither federal nor state funding may be used for
the sterilization of anyone under 21 years old.
115
Further, in New York
City, sterilizations may not be performed on anyone under 21 years
of age, regardless of the funding source.
116
These restrictions reflect
the permanent nature of sterilization and mitigate the risk of past
abuses that involved the involuntary sterilization of women of color,
poor women, and women with disabilities.
117
49Teenagers, Health Care, and the Law
Emergency Contraception
Emergency contraception (EC), or the “morning after pill,” is a
high-dose birth control pill that prevents pregnancy if taken shortly
after unprotected sexual intercourse. EC is contraception; it cannot
interrupt an already existing pregnancy, and it is not the same as a
drug known as mifepristone (RU-486), which is taken to induce
abortion during the first several weeks of a pregnancy. Most types
of EC are effective when taken within 72 (sometimes up to 120)
hours after unprotected sex, with effectiveness varying by brand
and type.
118
As a rule, the sooner EC is taken following unprotected
sex, the more successful it is in preventing pregnancy.
To facilitate fast access to EC, the American College of Obstetricians
and Gynecologists urges doctors to provide advance prescriptions
for EC to patients during routine gynecologic visits.
119
Purchasing Emergency Contraception
In April 2013, the FDA approved certain types of EC for sale to
people over the age of 15 without a prescription. Following litigation,
the FDA revised this approval to include all minors of childbearing
age.
120
Minors can also obtain certain types of EC directly from
family planning clinics and other providers across the state.
Emergency Contraception, Medicaid, and Title X
Both over-the-counter and prescription EC are covered by New York
State Medicaid. Medicaid clients do not need to present a fiscal
note or any documentation from a doctor to use Medicaid to purchase
EC from a pharmacist.
121
Also, Title X – a federal program that gives grants to support family
planning and other preventive services – requires grantees to include
a broad range of acceptable and effective family planning methods.
122
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
50 Teenagers, Health Care, and the Law
Title X guidelines further advise providers to offer the full range of
FDA-approved contraceptive methods.
123
Based on these guidelines,
many Title X clinics offer EC on the same basis as any other safe
and effective family planning method.
Emergency Contraception and Rape Crisis Care
The New York State Public Health Law requires every hospital
providing emergency treatment to a survivor of sexual assault
to provide prompt written and oral information about EC, and to
provide EC when requested.
124
Consent
Because EC is a method of contraception, it is available to all
minors without the consent of a parent.
125
Confidentiality
Because minors have the right to consent to contraceptive services,
information relating to EC may not be disclosed without the
permission of the patient.
126
Abortion
Various methods of abortion are available depending upon the stage
of pregnancy, the patient’s preferences, and other medical indications.
Abortions by all methods have low complication rates.
127
Patients
should talk to their providers about which method of abortion is
best for them.
Consent
A minor in New York can obtain an abortion without parental
involvement. The U.S. Supreme Court has ruled that a state may
require parental involvement in a minor’s abortion decision if the
51Teenagers, Health Care, and the Law
state also provides an alternative procedure for the minor to seek
authorization from a court.
128
But New York State does not require
parental consent or notification. Therefore, a pregnant teen in
New York may consent to (or refuse) an abortion, as long as she
understands the risks and benefits of the procedure and its
alternatives.
Confidentiality
New York law forbids the release of medical records pertaining to
a minor’s abortion to the minor’s parents without explicit consent
from the minor.
129
As a matter of practice, most providers encourage teenagers to
involve their parents or other supportive adults in their abortion
decisions. Most teens do voluntarily consult one or both parents
about their abortion decisions,
130
and those who do not often have
compelling reasons including, among others, a reasonable fear
of abuse or of exacerbating already strained family situations.
131
Q
Kim is 15. She is from Iowa but is staying in New York for
the summer for a dance program. She has found out that
she is pregnant and wants to terminate the pregnancy.
Does she need parental consent?
A
No. While Kim is in New York, she will be treated according
to New York law. She does not need parental consent.
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
52 Teenagers, Health Care, and the Law
Sexually Transmitted Infections (STIs)
Consent
A minor who provides informed consent can be tested or
treated for a sexually transmitted infection without a parent’s
or guardian’s consent.
132
Q
Tanya is 15. She thinks she might have herpes, but she
doesn’t want to tell her parents. Can she get medical
attention without telling them?
A
Yes. Whether by diagnosis, prescription, or surgical
treatment, physicians may treat adolescents for STIs
without parental consent. So long as Tanya has the
capacity to provide informed consent, the doctor may not
disclose information about STI services to her parents
without her permission.
Confidentiality
New York and federal law expressly forbid the release of information
about STIs to parents or guardians without the patient’s permission.
133
Health care providers must, however, comply with New York
regulations that require them to report suspected or confirmed cases
of communicable diseases. Because New York includes syphilis,
gonorrhea, and chlamydia in its list of communicable diseases,
physicians must report cases of these STIs to state health officials.
134
The reporting requirements allow for limited disclosure of personal
information only to certain specified state officials.
135
Moreover,
New York law adds special confidentiality protections to reports of
53Teenagers, Health Care, and the Law
syphilis, gonorrhea, and chlamydia: The state or local departments
of health that receive and maintain such reports must keep them
confidential, except that very limited disclosure may be permitted
to other public health agencies for purposes of disease control.
136
HIV/AIDS
The law differentiates HIV/AIDS from other STIs and provides special
protections for the confidentiality of people living with HIV or AIDS,
but narrow exceptions in the law require disclosure of HIV/AIDS
information in limited circumstances (see below).
137
Consent
A minor who provides informed consent may be tested and
treated for HIV/AIDS without a parent’s or guardian’s consent
and may also consent to preventive care to avoid infection.
138
Q
Raoul, a 16-year-old who lives with his mother, is HIV-
positive, but has not told his mother. Raoul has now
developed an AIDS-related illness and wants medical care
but will avoid treatment if he is required to tell his mother.
Can a physician treat Raoul without parental consent?
A
Yes. A physician may treat Raoul without consulting his
parents. However, the physician may want to help Raoul
talk to his mother or find a supportive adult in whom he
can confide about his situation.
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
54 Teenagers, Health Care, and the Law
Q
Jim and Toni, both minors, are considering a sexual
relationship. Jim has been sexually active before and
believes he may have been exposed to HIV. Toni has never
been sexually active before and wants to prevent exposure
to HIV. Can Toni consent to using pre-exposure prophylaxis
(PrEP) to avoid infection?
139
A
Yes. A provider can prescribe PrEP based on Toni’s own
informed consent.
Testing
New York law requires informed consent before an HIV test can be
administered.
140
Because the capacity to consent to such testing is
determined without regard to age,
141
a minor with capacity has the
right to consent to – or to refuse – HIV testing. Primary care providers,
hospitals, and certain diagnostic and treatment centers are legally
required to offer HIV testing to every individual “age thirteen and
older (or younger than thirteen if there is evidence or indication of
risk activity).”
142
The law contains an exception to the written consent requirement
for newborns, who are routinely tested at birth without parental
consent, even though the test may not accurately reveal the baby’s
HIV status and may indicate whether the mother is HIV-positive.
143
An individual who decides to get an HIV test may choose to have
either an anonymous test at a Department of Health site or a
confidential test. The difference between the two types of tests is
the degree of confidentiality associated with the results. Anonymous
testing means that the person being tested does not reveal his or
55Teenagers, Health Care, and the Law
her name; informed consent is given through use of a coded system
with no linking of individual identity to the test request or results.
144
Therefore, the results can never be traced to the individual.
Anonymous HIV/AIDS testing sites can be located by calling 311 or
the regional Anonymous HIV Testing Programs listed in the state
and city health department publication, Say Yes to the HIV Test,
https://www.health.ny.gov/publications/9678.pdf (p. 4). All other
HIV testing is confidential, which means that while the results will
largely be kept confidential, they will be subject to reporting and
contact notification disclosures (see below).
Confidentiality
Because people living with HIV/AIDS often face discrimination,
confidential HIV-related information – meaning any information
about whether a person has had an HIV-related test, has tested
positive for HIV, or has an HIV-related illness or AIDS – generally
may not be disclosed without the patient’s permission. The law
explicitly forbids physicians, health officers, social services providers,
and health care facilities from releasing confidential information,
except in specified circumstances, and only to designated individuals
or facilities.
145
In fact, any person who discloses confidential HIV-related
information without a signed release under circumstances other
than those prescribed by law (see below) is subject to civil and
criminal penalties.
146
Special Confidentiality Considerations in HIV/AIDS Care
Disclosure to a Minor’s Parents or Guardians
A person who obtains confidential HIV-related information in the
course of providing any health or social service to a minor may
disclose such information to the minor’s parent or guardian without
the minor’s permission only if:
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
56 Teenagers, Health Care, and the Law
• the minor lacks the capacity to consent to the HIV/AIDS
services at issue; and
• the parent or guardian is lawfully authorized to consent on
the minor’s behalf; and
147
• the physician reasonably believes that disclosure is medically
necessary in order to provide timely care and treatment; and
• the physician has given the minor appropriate counseling
regarding the need to disclose the information to the minor’s
parents, and the minor still will not make the disclosure.
148
Even if all the above conditions are met, a physician may not
disclose confidential information to a minor’s parents if:
• the physician concludes in the exercise of professional
judgment that “the disclosure would not be in the best
interest of” the minor; or
• the minor is otherwise authorized by law to consent to
HIV-related care, for example by virtue of marriage,
parenthood, pregnancy, or emancipation (see Section II).
149
All decisions regarding parental involvement in a minor’s HIV/AIDS
treatment, including the reason for the decision, must be noted in
the minor’s medical record.
150
Disclosure to a Minor’s Adoption or Foster Care Agency,
Adoptive or Foster Parents, or Attorney
While a minor in foster care or waiting for adoption has the same
right to refuse or consent to an HIV test or treatment as any other
minor, information about such testing or treatment is sometimes
subject to broader disclosure. Note, however, that as with any other
patient, minors who receive an anonymous HIV test will be assured
confidentiality.
57Teenagers, Health Care, and the Law
When a minor in foster care or awaiting adoption is tested
confidentially, but not anonymously, HIV-related information must
be released to the following:
• An authorized foster care or adoption agency,
151
which must
in turn disclose the information to the minor’s prospective
foster or adoptive parents, or to relatives or other responsible
persons who will assume care of the child through official
placements;
152
• An attorney appointed to represent the minor (generally in
child abuse or neglect proceedings) insofar as disclosure of
the information serves the purpose of enabling the attorney
to represent the minor. If the minor is capable of consenting
to his or her own health care, the attorney cannot redisclose
the information to anyone else without the minor’s
permission.
153
Disclosure Pursuant to Written Consent
A patient’s general authorization for the release of medical
information is insufficient to authorize disclosure of HIV-related
information. Rather, written consent must specify that HIV-related
information is to be disclosed.
154
Disclosure without specific written
consent is punishable by a jail sentence or fine.
155
Disclosure Pursuant to a Court Order
Providers may be required by court order to disclose confidential
HIV-related information to someone who would not otherwise have
access.
156
However, the person requesting the court order must
prove extraordinary circumstances to justify the disclosure, and the
court must safeguard the confidentiality of the HIV-related
information.
157
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
58 Teenagers, Health Care, and the Law
Tests and Diagnoses of HIV: Reports to the Department of Health
Physicians and other designated medical personnel must report
to the New York State Commissioner of Health the names of
individuals who receive a positive HIV test, a diagnosis of AIDS, or
a diagnosis of an AIDS-related illness.
158
In addition, laboratories
must divulge the results of other HIV-related tests, regardless of
the patient’s stage of treatment.
159
The New York State Department
of Health cannot disclose any of this information further, except to
the extent necessary to conduct contact tracing.
Tests and Diagnoses of HIV: Contact Tracing
A health care provider is also required by law to report to public
health officials all known sexual and needle-sharing contacts
upon a test or diagnosis.
160
“Known contacts” may include a
spouse, boyfriend, or girlfriend, whether the name is disclosed by
the patient or known independently by the provider.
161
However, the
patient is not required to name any contacts
162
and cannot be
punished or denied treatment for refusing to do so.
163
Further,
although the provider must ask the patient for contact names, the
patient is not required to conduct independent research to identify
additional contacts.
164
After receiving reports from health care providers, local public health
officials determine whether contact notification will protect the public
health. If so, the officials are responsible for notifying reported
contacts that they may have been exposed to HIV.
165
Public health
officials responsible for notifying contacts may not disclose any
information relating to the identity of the original HIV patient or
any other contact.
166
However, a contact may be able to figure out
independently who triggered the report and notification.
Before making a report to a public health official, a health care
provider must screen the patient for signs of domestic violence.
167
The public health official will defer notifying a contact if the patient
59Teenagers, Health Care, and the Law
reports that notifying a particular contact would severely risk the
physical health and safety of the patient, his or her children, or
someone else.
168
Disclosure of domestic violence involving children
can also lead to a child abuse investigation.
An individual always has the option of anonymous HIV testing.
Individuals who are tested anonymously will not be reported.
Anonymous testing ensures confidentiality because related
information cannot be traced back to that person. However, reporting
and contact notification rules are triggered once treatment begins.
169
Q
Maya, who is 15, thinks that she might be HIV-positive. She
is worried that her boyfriend, Sean, who is 17 and has a
temper, might find out that she has cheated on him if he
learns of her HIV status. What are Maya’s options?
A
Maya can get tested for HIV at an anonymous HIV testing
site. She will be given a coded receipt that she can use to
get her results without revealing her identity. If Maya tests
positive, however, she cannot maintain complete anonymity
once she begins treatment. Her treating doctor will perform
a diagnostic test to confirm that Maya is indeed HIV-positive,
which will trigger the reporting and contact notification
laws. Maya can choose not to share Sean’s name with her
doctor, or if her regular doctor already knows of Sean,
Maya can choose to see a new doctor for treatment after
receiving the anonymous test results. If Maya does tell her
doctor about Sean or if she uses her regular doctor, contact
notification could still be deferred if there is a severe risk
that Sean will physically injure Maya or otherwise threaten
her safety, although notification will be reconsidered at a
later date.
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
60 Teenagers, Health Care, and the Law
Q
Dr. Johnson has been treating Samuel, 17, for five years.
With Samuel’s informed consent, Dr. Johnson recently
ordered an HIV test that turned out positive. Dr. Johnson
tells Samuel that she is required by law to ask about and
report any sexual or needle-sharing partners that he may
have, but that Samuel is not required to share the names of
such people. Samuel chooses not to tell Dr. Johnson of any
contacts. What are Dr. Johnson’s obligations to report?
A
Dr. Johnson must report Samuel and any of his contacts
who are known to Dr. Johnson. For example, if Dr. Johnson
knows Samuel recently got married, she must include
Samuel’s spouse as a contact in her report. However,
Dr. Johnson does not need to perform any additional or
independent investigatory work (such as interviewing
other people) in order to have made a good faith report
to the Department of Health. Even without such extra
efforts, Dr. Johnson has fulfilled her reporting duty and
will not be penalized for failing to identify or locate
additional contacts.
Ongoing HIV Treatment: Partner/Contact Notification
In addition to the notification requirements associated with tests
and diagnoses, a physician has the option of breaching a patient’s
confidentiality to inform a known contact directly if the physician
believes disclosure is medically appropriate and there is significant
risk of infection to the contact.
170
However, prior to any disclosure,
the physician must take each of the following steps:
• Counsel the individual living with HIV of the need to notify
the contact; and
61Teenagers, Health Care, and the Law
• Inform the individual living with HIV of the physician’s intent
to make disclosure to the contact as well as the physician’s
responsibility to report the patient’s name and the names of
contacts to the Commissioner of Health; and
• Give the individual living with HIV a chance to choose
whether the disclosure will be made by the physician
or a public health officer; and
• Screen for domestic violence to determine if deferment of
notification is warranted.
171
Q
James is 16 years old and living with HIV. In a routine
physical, he tells his physician about having unprotected
sex with Colin, whom the physician also treats. Must the
physician tell Colin he is at risk of being exposed to HIV or
report this contact to the Department of Health? May the
physician tell Colin?
A
The physician’s duty to report contacts to the Commissioner
of Health arises at the time of diagnosis of HIV/AIDS or
during monitoring that involves laboratory tests; it is not
otherwise an ongoing duty.
172
The physician therefore has
no duty to report to the Commissioner.
The physician may, however, breach James’s confidentiality
by telling Colin if medically appropriate and if Colin faces a
significant risk of infection. However, the physician is not
required to do so and cannot be sued or otherwise held
liable for failure to tell Colin.
173
Before making the disclosure,
the physician must follow the mandated counseling protocol
with James.
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
62 Teenagers, Health Care, and the Law
Prenatal Care, Labor, and Delivery Services
Consent
A pregnant minor may consent to medical, dental, health, and
hospital services relating to prenatal care.
174
Labor and delivery
services are also within the scope of the services to which a
pregnant minor can consent. Once a child is born, the minor
parents can consent to all medical care for themselves and for
their child.
175
Q
Priya is pregnant and 15 years old. May she decide whether
to have a cesarean section or a vaginal delivery?
A
Yes. Physicians may strongly encourage a young woman
to seek a supportive adult’s assistance when making a
difficult decision such as this. Ultimately, however, if Priya
understands the risks and benefits of the procedures, she
can make the decision for herself.
Confidentiality
As discussed above, a minor may authorize or withhold
authorization
for the disclosure of health information related
to any health service to which a minor may lawfully consent.
176
Such information must remain confidential, unless the minor
who consented to the health services expressly authorizes the
release of that information.
177
63Teenagers, Health Care, and the Law
Sexual Assault Care
What Is Sexual Assault?
A person is sexually assaulted when anyone (including a stranger,
acquaintance, date, spouse, or family member) engages in any type
of sexual activity with that person without his or her consent. Assault
may involve the use of physical force, emotional coercion, threats,
or manipulation. Also, a person may be incapable of giving consent
by reason of mental impairment or incapacity (being intoxicated or
having passed out, for example). Sexual assault can be violent or
nonviolent, and it may or may not involve physical injuries.
What Does Sexual Assault Care Involve?
A person who has been sexually assaulted may seek reproductive
health services or treatment for injuries. Sexual assault services
involve two components: medical care and evidence collection. If
sexual assault is suspected, hospitals are required to provide,
upon request, prophylaxis against sexually transmitted
infections and pregnancy (EC), as well as counseling regarding
all treatment options so that survivors may make informed
choices.
178
Additionally, hospitals must advise patients of the
availability of local rape crisis or victim assistance organizations
and, subject to patient consent, contact such organizations on their
behalf.
179
Hospitals must also discuss with survivors the option of
reporting the offense to the police.
180
The second part of sexual assault care involves what is commonly
called the “rape kit,” which is used to collect evidence such as
semen, hair, and blood samples for later use if the survivor chooses
to file criminal charges.
181
Generally, evidence collection is most
effective within 72 hours of the assault and before showering. A
survivor can choose to receive care where evidence is collected
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
64 Teenagers, Health Care, and the Law
and then decide later whether or not to file charges. Merely having
the examination does not mean the survivor must press charges.
Consent
A minor who is capable of giving informed consent can consent to
many aspects of sexual assault care without parental involvement.
For example, a minor with capacity may consent to confidential
reproductive health services
182
and rape crisis counseling.
183
Under
long-standing Department of Health policy, a mature minor may also
consent to the collection and release of forensic evidence related to
the assault.
184
In addition, depending on the circumstances, a minor
may be able to consent to the treatment of related injuries.
185
A minor who has the capacity to give informed consent for services
related to a sexual assault also has the capacity to decline them;
thus, no one may force a capable minor to submit to a sexual
assault exam.
Q
Susan, 16, is brought into the emergency room by her very
angry mother, who thinks that Susan is having sex with her
18-year-old boyfriend. The mother demands that the
emergency room doctors or nurses perform a “rape kit”
on her daughter to determine whether or not she is still a
virgin. Must the providers perform the examination?
A
No. A minor who is capable of giving or withholding
informed consent to reproductive health care cannot be
forced to submit to such an examination. Medical ethics
might also preclude the performance of a “virginity test”
that has no medical purpose or benefit. Therefore, unless
Susan voluntarily consents, the exam cannot take place.
186
65Teenagers, Health Care, and the Law
Confidentiality
A minor has a right to confidentiality as to some aspects of the
care related to sexual assault, but there are important exceptions
that may require disclosures in this context.
A health care provider has no general duty to report crimes committed
against a patient, and any such reporting, unless required by law,
constitutes a confidentiality breach. When a minor is a victim of a
sexual assault, however, the law may
require disclosures of related information for a range of reasons.
• Health care providers are required to report to child welfare
authorities if the circumstances surrounding the assault
create a reasonable suspicion of child abuse.
187
For example,
a parent or other caretaker may have sexually abused the
child or knowingly allowed the child to be coerced into a
sexual encounter or relationship.
• If the sexual assault involves gunshot wounds, life-threatening
stabbings, or burns, a hospital may be required to turn over
evidence of those crimes to the police.
188
• If the sexual assault survivor is under the age of 16, a health
care provider or social worker may be compelled to testify in
legal proceedings about information gained in the course of
treatment that bears on the crime against the minor.
189
• Reporting obligations may also require providers to breach
confidentiality when sexual assaults (or other crimes)
take place at facilities where patients are receiving mental
health care.
190
• Health care providers are required to report to public health
officials if the survivor tests positive for HIV, syphilis,
chlamydia, or gonorrhea.
191
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
66 Teenagers, Health Care, and the Law
• Because the police are not bound by confidentiality rules, a
minor who chooses to file a police report may lose control
over how and to whom the information is disclosed.
Q
Tracy is 15 and seeks rape crisis treatment after being
attacked by a stranger. Besides reproductive health care,
such as STI prophylaxis and EC, she needs care for bruises
and other injuries. She does not want to involve her
parents, however. Can the hospital call her parents without
her permission to obtain consent to treat these other
injuries? Can the hospital report the assault to the police?
A
It is unclear whether the hospital may contact Tracy’s
parents to get their consent to treat her bruises and other
injuries. Reaching out to her parents could compromise
the confidentiality of the array of reproductive health care
that Tracy can consent to, but the law does not explicitly
grant or deny Tracy the right to consent independently to
treatment for her related injuries. The hospital should
counsel and encourage her to notify a parent or other
responsible adult, if any, who can assist her. The hospital
should not, however, contact the police unless it has
Tracy’s consent and the consent of her parents, if they are
involved, except that the hospital is obligated to report
certain injuries resulting from gunshots, life-threatening
stabbings, or burns.
67Teenagers, Health Care, and the Law
Mental Health Counseling and Services
Consent
A minor’s right to receive mental health treatment without a
parent’s consent depends on the type of treatment sought:
outpatient treatment, where a minor is living at home and visits
the mental health care provider for treatment only, or inpatient
treatment, where a minor resides in the hospital or mental health
care center. In the outpatient context, a minor’s right to consent
also depends on the type of facility providing service. The law
applies explicitly to “services provided in an outpatient program
licensed or operated pursuant to the regulations of the commissioner
of mental health.”
192
A minor’s right to consent is less clear in
private, unlicensed mental health settings, and practitioners in
such settings may want to consult with legal counsel about how
best to offer mental health services to minors.
Outpatient Treatment
A mental health practitioner practicing in a facility licensed or
operated by the state Office of Mental Health may provide
outpatient services to a minor without parental consent if:
(1) The minor knowingly and voluntarily seeks such
services, and
(2) The services are clinically indicated and necessary
to the minor’s well-being, and
(3) (i) a parent or guardian is not reasonably available, or
(ii) requiring parental or guardian consent or involvement
would have a detrimental effect on the course of
outpatient treatment, or
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
68 Teenagers, Health Care, and the Law
(iii) a parent or guardian has refused to give such consent
and a physician determines that treatment is
necessary and in the best interests of the minor.
193
Outpatient mental health treatment may include the prescription of
psychotropic medications based on a minor’s own consent if the
minor is 16 or older, the above conditions are met, and the physician
obtains second opinions verifying his or her medical judgments.
194
If the conditions outlined above are not present, New York law
requires the consent of a parent or guardian for outpatient mental
health treatment.
195
A young person may meet with a mental health
care provider without prior parental consent in order to determine
whether the minor meets these guidelines.
196
A mental health care
provider should document in a minor’s medical record the basis for a
determination as to whether the above criteria are met.
197
Q
Qiao-ling is 15. She is severely depressed and wants
mental health treatment. She does not want to tell her
parents because she believes they will prevent her from
seeking care. The physician believes that she needs to
be treated. Can the doctor treat Qiao-ling?
A
Yes, if Qiao-ling gives her own informed consent to the
treatment and the doctor determines that involving her
parents would have a detrimental effect on her care.
Qiao-ling cannot consent on her own to the use of
antidepressants until she turns 16, however, and an
independent psychiatrist must verify that she has
capacity, the medication is in her best interests, and
involving her parents would be detrimental to the course
of treatment.
69Teenagers, Health Care, and the Law
Inpatient Treatment
A minor 16 or over can seek admission to a hospital for inpatient
mental health treatment, including medication, on his or her own,
but younger teens must obtain parental consent.
198
A minor who is hospitalized for inpatient mental health treatment is
ensured access to legal counsel in the following ways:
• The minor, like any other mental health patient, must be
informed that legal counsel is available;
199
and
• Within three days of the minor’s arrival, the facility must give
notice to Mental Hygiene Legal Services regarding the minor’s
admission.
200
Generally, a patient (minor or adult) who has chosen to enter a
mental health facility may not be kept involuntarily. However, if the
institution determines that there are reasonable grounds to believe
that the patient presents a danger to him- or herself or to others,
the patient may be held for a maximum of 72 hours, during which
time the facility must petition a court for involuntary commitment.
201
The court hearing must be scheduled within 72 hours of the date
that the facility requests the involuntary commitment.
202
Only if the
court concludes that the patient poses a real and present threat to
him- or herself or others may the patient be involuntarily detained.
203
As with all other medical services, in an emergency, psychiatric
treatment and medication can be made available to a minor without
parental consent.
204
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
70 Teenagers, Health Care, and the Law
Q
Can Rahim, who is 15, consent to his own admission for
inpatient mental health treatment?
A
No. A minor must be 16 or older to consent to inpatient
mental health treatment.
Confidentiality
As a general matter, when a minor consents to mental health care,
information relating to such treatment may not be disclosed
without the minor’s permission.
205
These confidentiality provisions
apply not only to providers licensed by the New York Office of
Mental Health, but to any facility in which mental health services
are provided, such as psychiatric centers and clinics.
206
Even when a parent gives consent to mental health services for a
minor, the parent is not guaranteed access to information relating to
the treatment. When a parent requests access to a minor’s mental
health records, minors 13 and older may be notified of the request.
If the minor objects to disclosure, the provider may choose to deny
the parent’s request.
207
A provider is also permitted to deny a
parent access to a minor’s mental health records upon determining
that disclosure would have a detrimental effect on the practitioner’s
professional relationship with the minor patient, or on the care and
treatment of the minor, or on the minor’s relationship with his or her
parents or guardians.
208
Further, professional ethics generally dictate
that mental health professionals maintain strict confidentiality in
dealing with their patients, including their minor patients.
209
There are, of course, exceptions to the general rule of confidentiality.
The law permits disclosures pursuant to court order; notifications
71Teenagers, Health Care, and the Law
to legal service providers; and reports to health oversight agencies,
individuals who might be endangered by a patient, researchers,
coroners, prisons, other health care providers, and an array of other
individuals and entities.
210
In particular, New York law requires the
directors of mental health facilities to notify parents of accidents or
injuries that affect the health and safety of a patient and allows
parents and guardians access to facility records related to such
incidents.
211
In addition, more targeted provisions of the mental health law and
regulations require reporting of a wide range of misconduct in
or under the auspices of certain kinds of facilities. Facilities
operated or funded by the Office for People with Developmental
Disabilities,
212
for example, must disclose to oversight agencies,
report to a Vulnerable Persons’ Central Register, and notify parents
of incidents involving the physical, psychological, and sexual abuse
of patients, along with many other acts and omissions that may
cause harm.
213
The Central Register must, in turn, screen reports
and forward those that appear to allege crimes to appropriate
law enforcement agencies.
214
Similar laws apply to facilities and
programs operated, funded, or administered by the Office of
Mental Health.
215
Because of these and other reporting obligations, confidentiality
protections will vary from case to case depending on many factors,
such as where the incident occurred and the type of facility in which
the young person is receiving treatment. Health care providers are
encouraged to seek legal counsel or to contact the NYCLU with
questions about whether and how general confidentiality rules
apply to a particular situation at a mental health care facility.
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
72 Teenagers, Health Care, and the Law
Alcohol and Substance Abuse Services
Consent
In general, when treating a minor for chemical dependence
216
on an inpatient, residential, or outpatient basis, health care
providers must take steps to involve the parents or guardians in
the course of treatment and obtain consent from a parent or
guardian.
217
However, a minor may be admitted for inpatient,
residential, or outpatient treatment related to chemical
dependence without parental or guardian involvement and
consent, if:
• The physician determines that the involvement of the parent
or guardian would have a detrimental effect on the course of
treatment; or
• The parent or guardian refuses to consent to such treatment,
and the physician believes that such treatment is necessary
to protect the best interests of the minor;
218
or
• The provider cannot locate the parent or guardian after
employing reasonable measures, in which case the program
director may authorize the treatment of the minor;
219
or
• The parents or guardians fail or refuse to communicate with
the provider within a reasonable time regarding the minor’s
treatment, in which case the program director may authorize
the treatment of the minor;
220
or
• The minor is a parent, married, or emancipated.
221
Any decision to treat a minor without parental consent must be
documented in the patient’s record and must include a form, signed
by the minor patient, indicating that the minor is voluntarily seeking
treatment and has been advised of the availability of help from
73Teenagers, Health Care, and the Law
the mental hygiene legal service and of his or her rights under the
New York Mental Hygiene Law.
222
When a minor is admitted without parental involvement and consent,
the provider must use his or her best efforts to obtain from the
minor the name, address, and telephone number of an adult who
may serve as an emergency contact. The provider must then verify
the existence of the emergency contact, but only after giving notice
to the minor and receiving the minor’s prior written consent to reach
out to the emergency contact.
223
Note, however, that a facility may
admit a minor patient for treatment related to chemical dependence
even if reasonable efforts to identify an emergency contact have
failed.
224
Confidentiality
When a minor obtains alcohol abuse or substance abuse services
at a program or facility receiving funding from any federal
department or agency, confidentiality is stringently protected.
225
Disclosure is allowed only pursuant to written consent or a court
order, or in a medical emergency.
226
If the minor patient acting
alone consented to substance abuse treatment in accordance with
the law outlined above, then the minor patient alone has the authority
to consent or refuse to consent to a disclosure, including to the
minor’s parent or guardian.
227
If a parent or guardian provided consent
to the minor’s treatment, then both the minor and the parent or
guardian must consent in writing to any disclosure of related
information.
228
If a minor seeks substance abuse treatment in a
situation in which New York law requires the consent of a parent or
guardian, a program receiving federal funds may notify a parent or
guardian of the minor’s request only if: (1) the minor consents in
writing or (2) the program director concludes that the minor lacks
the capacity for rational decision-making, and communication with
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
74 Teenagers, Health Care, and the Law
a parent or guardian would mitigate a “substantial threat to the life
or physical well-being of the minor applicant or any other individual.”
229
The general prohibition on disclosure in federally funded programs
is expansive. In the absence of a court order,
230
federal law
explicitly bars law enforcement from using information maintained
by such a program to initiate or substantiate criminal charges or to
conduct an investigation against a patient.
231
Moreover, when a
patient receives any medical treatment at a drug and alcohol abuse and
prevention facility – even if the treatment is unrelated to substance
abuse – information relating to the treatment is confidential.
232
Q
Duane is 16. He is thinking about talking to a school
substance abuse counselor about his drinking problem,
but he is scared that his parents will be notified. Can he
receive counseling without parental consent?
A
Probably. Parental consent is generally not necessary for
a minor to receive alcohol counseling, and many schools
receive federal funding, which subjects any associated
substance abuse program to strict consent and confidentiality
rules. Whether or not the counselor decides to treat
Duane, the counselor may not disclose information to
Duane’s parents without Duane’s permission if the school
receives federal funds.
233
If a minor seeks substance abuse treatment in a facility or from a
provider that receives no federal funds, New York law guarantees
the confidentiality of the associated information in accordance with
the many applicable laws shielding health records.
234
75Teenagers, Health Care, and the Law
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
Emergency Care
Consent
A doctor may treat a minor without the consent of a parent or
guardian when the doctor has determined, in the exercise of
professional judgment, that an emergency exists, the minor is in
immediate need of medical attention, and an attempt to secure
consent from a parent or guardian would result in delay that would
increase the risk to the minor’s life or health.
235
One New York court
has held that “if a physician or surgeon is confronted with an
emergency which endangers the life or health of the patient, or [in
which] suffering or pain may be alleviated, it is his duty to do that
which the occasion demands.”
236
Q
Luis is 6. He is suffering from a severe asthma attack and a
teacher takes him to the hospital. His parents cannot be
found. May he receive treatment?
A
Yes. The doctor can treat Luis’s asthma attack to address
his urgent need for care.
Q
This time Luis broke his leg. Again, his parents are nowhere
to be found. May he be treated?
A
Yes again. While Luis might not die from waiting, a doctor
can treat him under the emergency exception because his
“pain may be alleviated” by prompt treatment.
76 Teenagers, Health Care, and the Law
Confidentiality
When a health care provider treats a minor without parental consent
to address an emergency that resulted from accidental injury or the
unexpected onset of serious illness, the provider must give the minor’s
parent or guardian an opportunity, within 10 days, to inspect any patient
information relating to such care.
237
The health care provider may,
however, deny a parent or guardian access to such information if the
provider determines that disclosure would have a detrimental effect
on the provider’s professional relationship with the minor, on the care
and treatment of the minor, or on the minor’s relationship with his or
her parents or guardian.
238
Furthermore, a health care provider may
notify a minor over the age of 12 of a parent’s or guardian’s request to
review his or her information relating to emergency care and may deny
access if the minor patient objects.
239
Transgender-Related Health Care
Consent
Youth whose gender identity does not match the sex they were
assigned at birth may want health care to confirm their gender
identity. So far, no New York law specifically allows teens to
consent on their own to trans-related health services. To the
extent that a minor seeks mental health care related to gender
identity, however, the general rules granting minors independent
access to such care apply.
240
And as with any other health care, a
married, parenting, or emancipated minor may consent independently.
Confidentiality
When a parent or guardian consents to trans-related health care
for a minor, that parent or guardian also has the right to authorize
or refuse the disclosure of information about such treatment.
Conversely, when a minor consents independently to the treatment,
77Teenagers, Health Care, and the Law
IV. TYPES OF HEALTH CARE THAT MINORS CAN
RECEIVE WITHOUT PARENTAL CONSENT
based on emancipation, for example, the minor will control the
release of information related to the services.
241
Equal Access to Health Care
New York law prohibits discrimination based on “gender identity,
self-image, appearance, behavior or expression.”
242
Regulations
issued by the state Division of Human Rights provide that
discrimination based on gender identity or “the status of being
transgender” constitutes sex discrimination.
243
In addition,
discrimination based on “gender dysphoria” – a medical condition
involving the severe distress that may result from having “a gender
identity different from the sex assigned at birth” – constitutes
discrimination based on disability; such that individuals with
gender dysphoria are entitled to reasonable accommodations.
244
Trans children and teens are therefore entitled to be treated
like any patient with a health care need when they seek services
of any kind, including services related to their gender identity.
Coverage for Low-Income Minors
For low-income teens, Medicaid covers some trans-related health
care. Sixteen- and 17-year-olds can qualify for hormone therapy
if they meet certain criteria and a qualified medical professional
determines that the treatment is medically necessary.
245
Minors
under 16 can also qualify “in specific cases if medical necessity is
demonstrated and prior approval is received.”
246
Medicaid will cover
gender-confirmation surgery for those who are over 18 and have
two letters of referral from mental health professionals; for minors
under 18, surgery may be covered “in specific cases if medical
necessity is demonstrated and prior approval is received.”
247
Children in foster care or in the juvenile justice system in New York
City may qualify for trans-related health care even when Medicaid
does not provide the necessary coverage.
248
78 Teenagers, Health Care, and the Law
V.
MINORS IN
FOSTER CARE
79Teenagers, Health Care, and the Law
V. MINORS IN FOSTER CARE
A minor in foster care is entitled to consent independently to the
same health care services as any other minor.
249
In circumstances
in which the minor may not consent on his or her own, parental
consent is required if parental rights have not been terminated
or surrendered.
250
If parental rights have been terminated or
surrendered, health care providers may not contact the parents
or seek their consent; instead, the foster care agency authorizes
health services for the child.
251
No matter who consents to the treatment, minors in foster care
face greater risks than others that their medical confidentiality
will be compromised. This is because any medical information
relating to a minor that is in the possession of a foster care or
adoption agency must be released to prospective foster or adoptive
parents when the minor is adopted, placed in foster care, or placed
with a relative or other legally responsible person.
252
HIV-Related Information
The law gives minors in foster care less protection than others
with respect to the confidentiality of HIV-related information.
Providers may release confidential HIV-related information to an
authorized foster care agency, without permission, but they are
not required to do so.
253
Foster care agencies, however, must
release any HIV-related medical information of which they have
knowledge to prospective foster or adoptive parents, or other
responsible persons who will assume care of the child through
official placements,
254
but must safeguard this information from
disclosure to others. Of course, if a minor receives anonymous
HIV testing, results will remain confidential.
255
80 Teenagers, Health Care, and the Law
Reproductive Health Care
Minors in foster care are entitled to receive health services through
their foster care agencies within 30 days of the minor’s request.
256
Such services include confidential family planning services, such
as contraceptive supplies and counseling, and minors in foster
care – like all other minors – can consent to such services on their
own.
257
However, because medical information obtained by foster
care agencies is subject to the mandatory disclosure requirements
referenced above, in order to ensure full confidentiality, a teen may
want to seek care for sensitive health issues from doctors or clinics
that are independent from the foster care agency.
Q
Clara, who is 16, is in foster care and wants to see a
gynecologist to begin annual reproductive care checkups.
However, she does not want her foster care agency or
foster parents to know about the private medical
information that her doctor will learn about her. How can
she keep the information confidential?
A
Clara can seek treatment from an independent health care
clinic or provider – such as Planned Parenthood (https://
www.plannedparenthood.org/health-center), the
Community Health Care Network (http://www.chnnyc.
org/), or the Mount Sinai Adolescent Health Center (http://
www.mountsinai.org/patient-care/service-areas/
adolescent-health-center) – that is not associated with the
foster care agency. Such clinics must keep her medical
information confidential and cannot disclose it to foster
care agencies without her prior consent. Note, however,
that if Clara seeks HIV care, related information will be
subject to disclosure, even if the health care provider is
not affiliated with the foster care agency.
81Teenagers, Health Care, and the Law
Transgender-Related Health Care
Medicaid covers hormone therapy for low-income teens who have
been diagnosed with gender dysphoria, a medical condition
reflecting the extreme distress that can result when a person’s
gender identity does not match that person’s body.
258
A minor in
foster care or certain juvenile justice placements in New York City
may receive broader coverage, however. Even in situations in which
Medicaid does not cover the services, the New York City
Administration for Children’s Services covers “gender affirming
healthcare,” defined to include “various types of medical care that
transgender, transsexual, and gender non-conforming individuals
may seek in relation to their gender identity.”
259
The general
guidelines for consent in the foster and juvenile justice systems
apply to trans-related care, meaning that parental or agency
consent will usually be required.
260
V. MINORS IN FOSTER CARE
VI.
PUBLIC HEALTH
INSURANCE PROGRAMS
AVAILABLE TO MINORS
83Teenagers, Health Care, and the Law
VI. PUBLIC HEALTH INSURANCE
PROGRAMS AVAILABLE TO MINORS
Medicaid
Medicaid is a publicly funded insurance program that covers
comprehensive medical services, including prenatal care, abortion,
and birth control, for minors who meet income and immigration
eligibility requirements.
261
A young person may get a list of
community-based organizations that can help him or her apply
for Medicaid or Child Health Plus (see below) by calling
1-800-698-4KIDS (1-800-698-4543) or going to the New York
State Department of Health website: https://www.health.
ny.gov/health_care/child_health_plus/where_do_i_apply.htm.
Eligibility
Generally, minors receive Medicaid services through an eligible
parent’s Medicaid enrollment. However, some minors who support
themselves in their own households or who are married, pregnant,
or parenting may apply on their own for Medicaid.
262
Minors can apply independently for Medicaid, without having their
parents’ income counted as available to them, if:
• The minor is legally married, in which case, only the
income of the minor and his or her spouse will count in
determining eligibility;
263
• The minor is 16 or older, stayed in school until age 16, does
not live with or receive money from a parent or guardian, and
does not live in foster care. The government may nevertheless
sue the minor’s parent(s)/guardian(s) for the cost of the
minor’s medical care;
264
• The minor is 16 or 17, pregnant or a parent, and does not live
with the minor’s parent or guardian because no parent or
guardian is available; the minor and his or her child would be
at serious risk of harm if they lived with the minor’s parent or
84 Teenagers, Health Care, and the Law
guardian; or it is otherwise not in the best interest of the
minor and his or her child to live with the minor’s parent or
guardian. The government may nevertheless sue the minor’s
parent(s)/guardian(s) for the cost of medical care for the
minor and the minor’s child;
265
• The young person is 18-20 and pregnant or a parent.
Because Medicaid continues to treat anyone under 21 as
the dependent of a parent, the government may sue the
young person’s parent(s)/guardian(s) for the cost of
medical care for the young person, but not for the cost
for the young person’s child;
266
• The young person is 18-20, and the parent or guardian is
unavailable or cannot or does not offer a safe home for the
young person. The government may sue the young person’s
parent(s)/guardian(s) for the cost of medical care for the
young person.
267
Medicaid covers pregnant minors (and pregnant adults) at a higher
income limit than applies to others. Income-eligibility levels are
adjusted annually, but the 2017 threshold was set at $35,524 a year
for a family of two (and a pregnant woman counts as herself plus
the number of infants she is expected to deliver).
268
The coverage
extends to a wide range of pregnancy-related screenings and
services and continues during a 60-day postpartum period.
269
A newborn whose mother is on Medicaid is automatically covered by
Medicaid through the first year of life and should be automatically
enrolled.
270
The income-eligibility level for babies up to age one is
the same as for pregnant women.
271
An infant should receive a
Medicaid card within two weeks of birth, but until then the infant can
receive health care services under the mother’s Medicaid card.
272
85Teenagers, Health Care, and the Law
Income-eligible pregnant minors (and adults) qualify for Medicaid in
New York regardless of their immigration status, meaning that even
undocumented minors can get coverage during and immediately
following their pregnancies.
273
Like all other infants born to Medicaid-
eligible women in the U.S., the native-born children of immigrant
mothers are automatically enrolled in Medicaid and eligible for
coverage from birth until at least the baby’s first birthday.
274
Any pregnant woman, including an undocumented woman, who has
Medicaid during her pregnancy but who loses Medicaid after the
pregnancy ends (for example, because she is no longer eligible or
because she fails to reapply) will probably be eligible for 24-26
months of Medicaid-covered family planning services under the
Family Planning Extension Program (FPEP). FPEP is available
regardless of whether the pregnancy ended in a miscarriage, live
birth, stillbirth, or abortion.
275
Confidentiality
Medical services provided under Medicaid are subject to special
confidentiality protections.
276
These protections apply whether the
minor is enrolled independently or under a parent’s Medicaid.
Confidentiality may be jeopardized, however, when bills, lab
reports, or managed care plan statements (such as explanations of
benefits or preauthorization approvals) get sent home. The problem
occurs most frequently with managed care plans. Providers and
patients should check with their insurance plan about what the
plan’s policy is regarding sending documents home. To guard
against these kinds of confidentiality breaches, minors who apply
for Medicaid on their own may specify a mailing address that is
different from their home address so as to avoid confidentiality
breaches through billing and other correspondence.
277
VI. PUBLIC HEALTH INSURANCE
PROGRAMS AVAILABLE TO MINORS
86 Teenagers, Health Care, and the Law
The Medicaid program also poses confidentiality problems with
regard to electronic information sharing. New York Medicaid
acknowledges that “[t]here are certain types of care that a minor
can consent/agree to without his/her parent’s or guardian’s
agreement” and that “[t]he minor has a right to say who can see
that information by state and federal law.”
278
Yet the Medicaid
program is unable to “segregate Medicaid claims information based
upon a type of service.”
279
Therefore, a minor who wants to protect
the confidentiality of health information relating to services to
which the minor independently consented must let Medicaid know
not to share the minor’s entire health record, as Medicaid does not
have the ability to protect discrete parts of the record.
280
Child Health Plus
New York’s Child Health Plus (CHP) is a publicly funded insurance
program for children and adolescents age 18 and younger.
281
CHP
provides comprehensive health benefits including prenatal care,
abortion, and the full range of reproductive health care.
282
A minor
can get information on applying for CHP by calling 1-800-698-4543
or going to the New York State Department of Health website:
https://www.health.ny.gov/health_care/child_health_plus/.
Eligibility
Because CHP has a higher household income limit than Medicaid
283
and is available regardless of an enrollee’s immigration status,
284
there is a good chance that if a teen is not eligible for Medicaid, the
teen will be eligible for CHP.
Generally, minors need parental participation in order to enroll in
CHP. However, married, pregnant, and parenting minors may enroll
themselves and their children in CHP without a parent’s or guardian’s
participation, and otherwise emancipated minors may also be able
87Teenagers, Health Care, and the Law
to enroll themselves; minors in these situations would benefit from
in-person assistance with the enrollment process.
285
A minor may
locate nearby individuals qualified to provide in-person assistance
at the N.Y. State of Health website: https://nystateofhealth.ny.gov/
agent/hx_brokerSearch?fromPage=INDIVIDUAL. Note that those
who try to self-enroll must obtain the proper documents to verify
household income eligibility.
Confidentiality
The medical services provided under CHP are subject to the same
confidentiality rules as apply in the Medicaid program.
286
Billing
may present a confidentiality problem, however, because all CHP
patients must choose a managed care plan, which may send home
bills, explanations of benefits, preauthorization approvals, and lab
reports. For example, a New York law requires managed care plans
to notify a patient in writing and by phone after the plan has made
an initial determination of whether and to what extent a health
service requiring preauthorization is covered (most surgical
procedures require preauthorization).
287
Providers can work with
their patients to find out what information their managed care
plan sends home and to figure out how to avoid unintentional
confidentiality breaches. Health plans must make reasonable
accommodations for patients whose safety depends on receiving
communications by alternative means or at alternative locations.
288
VI. PUBLIC HEALTH INSURANCE
PROGRAMS AVAILABLE TO MINORS
88 Teenagers, Health Care, and the Law
Health questions that minors face on a day-to-day
basis are often extremely complex. Confusion about
their rights can be compounded by their medical
situation, their immigration status, their inability to
pay for their own care, or any number of other factors.
This booklet offers broad guidelines on minors’ rights to confidential
health care. The Reproductive Rights Program of the New York Civil
Liberties Union hopes that this guide will raise awareness about
minors’ rights, thereby increasing the likelihood that minors will
seek health care when they need it.
CONCLUSION
89Teenagers, Health Care, and the Law
90 Teenagers, Health Care, and the Law
1
Tumaini R. Coker et al., Improving
Access to and Utilization of Adolescent
Preventive Health Care: The Perspectives
of Adolescents and Parents, 47 J. Adolescent
Health 133, 133−34 (2010) (“[A] substantial
proportion of U.S. adolescents does not
routinely utilize preventive care; utilization
may be especially low among African
American youth, Latino youth, and youth
living in poverty.”) (footnotes omitted);
Kaiser Family Foundation, Adolescent
Health: Coverage and Access to Care,
Women’s Issue Brief, Oct. 2011, at 4
(“Approximately 4 million adolescents
ages 10-18 lack health insurance. . . .
Adolescents without healthcare insurance
or with gaps in coverage have worse access
to needed health services, and half of
uninsured adolescents have at least one
unmet health need.”), https://kaiserfami-
lyfoundation.files.wordpress.
com/2013/01/8236.pdf.
2
Kaiser Family Foundation, Adolescent
Health: Coverage and Access to Care,
Women’s Issue Brief, Oct. 2011, at 2
(“Research has found that some teenagers
will go without care, withhold informa-
tion about themselves, delay, or not seek
help in order to keep their parents from
finding out about a health issue.
Confidentiality and privacy issues do not
only pose significant barriers to successful
screening and assessment of risky
behavior, but can affect patient compliance
and return for follow-up visits after a
diagnosis.”) (footnotes omitted), https://
kaiserfamilyfoundation.files.wordpress.
com/2013/01/8236.pdf; Confidential
Health Care for Adolescents: Position
Paper of the Society for Adolescent
Medicine, 35 J. Adolescent Health 160,
162 (2004) (“In two large national
surveys, approximately one-quarter of
middle and high schools students
reported that they did not seek health
care they needed. One of these studies
found that 35% of students who did not
seek care reported one reason was ‘not
wanting to tell their parents.’ . . . [O]
ne-half of single, sexually active girls
under 18 years of age recently surveyed
in family planning clinics in one state
reported that they would stop using the
clinics under conditions of mandatory
parental notification for prescription
contraceptives. An additional 12%
reported that they would delay or
discontinue use of specific services such
as services for STIs.”) (footnotes
omitted), https://www.adolescenthealth.
org/SAHM_Main/media/Advocacy/
Positions/Aug-04-Confidential_Health_
Care_for_Adolescents.pdf.
3
N.Y. Gen. Oblig. Law § 1-202 (McKinney
2017); N.Y. C.P.L.R. § 105(j) (McKinney
2017). (Note: The dates of all statutory
and regulatory citations are drawn
from Westlaw rather than from the
official published compilations.)
4
In fact, children are entitled to child
support, subject to the parent’s financial
means, until age 21 – even after they are
legally adults. N.Y. Fam. Ct. Act § 413
(McKinney 2017).
5
N.Y. Pub. Health Law § 2805-d
(McKinney 2017) (defining lack of
informed consent as “the failure of the
person providing the professional
treatment or diagnosis to disclose to the
patient such alternatives thereto and the
reasonably foreseeable risks and
benefits involved as a reasonable
medical, dental or podiatric practitioner
under similar circumstances would have
disclosed, in a manner permitting the
patient to make a knowledgeable
evaluation”); N.Y. Mental Hyg. Law §
80.03(c) (McKinney 2017) (“Lack of
ability to consent to or refuse major
medical treatment means the patient
cannot adequately understand and
appreciate the nature and consequences
of a proposed major medical treatment,
including the benefits and risks of and
alternatives to such treatment, and
cannot thereby reach an informed
decision to consent to or to refuse such
treatment in a knowing and voluntary
manner that promotes the patient’s
well-being.”).
91Teenagers, Health Care, and the Law
END NOTES
6
See N.Y. Pub. Health Law § 2994-c(1)
(McKinney 2017) (“For purposes of this
article, every adult shall be presumed to
have decision-making capacity unless
determined otherwise pursuant to this
section or pursuant to court order, or
unless a guardian is authorized to decide
about health care for the adult pursuant
to article eighty-one of the mental
hygiene law.”).
7
See Schloendorff v. Soc’y of N.Y. Hosp.,
211 N.Y. 125, 129-30 (N.Y. 1914) (“Every
human being of adult years and sound
mind has a right to determine what shall
be done with his own body; and a
surgeon who performs an operation
without his patient’s consent commits
an assault for which he is liable in
damages. This is true, except in cases of
emergency where the patient is
unconscious, and where it is necessary
to operate before consent can be
obtained.”), modified in part on
unrelated grounds by Bing v. Thunig, 2
N.Y.2d 656 (1957); Dale v. State, 355
N.Y.S.2d 485 (3rd Dep’t 1974), aff’d, 370
N.Y.S.2d 906 (1975); see also N.Y. Pub.
Health Law § 2805-d (McKinney 2017).
8
Werner Weinstock & Eve W. Paul,
Medical Treatment of Minors Under New
York Law, N.Y. J. Med., July 1978, at 1297,
1299 § 1:14.
9
N.Y. Pub. Health Law § 2805-d
(McKinney 2017).
10
See Schloendorff, 211 N.Y. at 130; Fogal
v. Genesee Hosp., 344 N.Y.S.2d 552, 559
(App. Div. 2d Dep’t 1973) (“The cause of
action is not based on any theory of
negligence but is an offshoot of the law
of assault and battery.”); Darrah v. Kite,
301 N.Y.S.2d 286, 290 (App. Div. 3d Dep’t
1969) (“It has long been settled in this
State that a ‘surgeon who performs an
operation without his patient’s consent
commits an assault, for which he is liable
in damages.’”). Modern case law holds
that malpractice is the preferred cause
of action for addressing lack of informed
consent, whereas assault and battery is
the proper cause of action in the
complete absence of consent in
nonexigent circumstances. See Slandy v.
Bryk, 864 N.Y.S.2d 46, 57 (App. Div. 2d
Dep’t 2008) (“[M]edical malpractice is
the gist of the wrong when an operation
or procedure is performed without the
informed consent of the patient to the
risks involved. Battery is the cause of
action when the patient has not
consented at all to the operation or
procedure.”) (internal citations omitted);
Spinosa v. Weinstein, 571 N.Y.S.2d 747,
753 (App. Div. 2d Dep’t 1991) (“[W]e
agree that a claim for assault and battery
may still be maintained in ‘nonexigent
situations involving no consent at all.’“)
(citations omitted); Romatowski v. Hitzig,
643 N.Y.S.2d 686, 689 (App. Div. 3d
Dep’t 1996) (“[W]here medical treatment
is rendered with the actual consent of
the patient, any alleged lack of informed
consent is medical malpractice and
not the intentional tort of assault and
battery.”).
11
See Cruzan by Cruzan v. Dir., Mo. Dep’t
of Health, 497 U.S. 261 (1990) (A
competent person has a constitutionally
protected right to refuse unwanted
medical treatment). Note that, because
most minors do not have independent
legal authority to consent to life-sustain-
ing treatment, they also do not have
independent legal authority to refuse it.
See N.Y.S. Dep’t of Health, MOLST/
Medical Orders for Life-Sustaining
Treatment, Legal Requirements
Checklist for Minor Patients and
Glossary 1 (Dec. 1, 2010) (noting
exceptions for emancipated minors but
stating general rule as follows: “The
parent of a minor patient has the
authority to make decisions on behalf of
the minor about life-sustaining
treatment, including decisions to
withhold or withdraw life-sustaining
treatment. The minor patient must also
consent if the minor patient has medical
decision-making capacity.”), https://
www.health.ny.gov/professionals/
patients/patient_rights/molst/docs/
checklist_minor.pdf; N.Y.S. Dep’t of
92 Teenagers, Health Care, and the Law
Health, Bureau of EMS Policy Statement
99-09, Patients Care and Consent for
Minors (Nov. 1999) (outlining exceptions
for emancipated minors and minors
consenting to certain types of services,
but stating general EMT protocol as
follows: “An individual who is legally a
minor cannot give effective legal/
informed consent to treatment and
therefore, conversely, cannot legally
refuse treatment.”), https://www.health.
ny.gov/professionals/ems/policy/99-09.htm.
12
See N.Y. Pub. Health Law § 2994-c
(McKinney 2017).
13
New York law recognizes several
practitioner-patient privileges, which
generally prevent practitioners from
being compelled to testify about patient
confidences. N.Y. C.P.L.R. §§ 4504(a),
4507, 4508, 4510 (McKinney 2017).
These privileges apply when: (1) a
provider-patient relationship was
established; (2) the information was
obtained in the course of treatment; and
(3) the information was necessary for
treatment. See Hughson v. St. Francis
Hosp., 463 N.Y.S.2d 224, 229 (App. Div.
2d Dep’t 1983). Moreover, a health care
professional who discloses confidential
communications without the prior
consent of the patient is guilty of
professional misconduct. 8 N.Y.C.R.R. §
29.1(b)(8) (2017) (“Unprofessional
conduct . . . shall include . . . revealing of
personally identifiable facts, data or
information obtained in a professional
capacity without the prior consent of the
patient or client, except as authorized or
required by law. . . .”); N.Y. Educ. Law §
6509(9) (McKinney 2017) (declaring any
unprofessional conduct to be profes-
sional misconduct). Unless otherwise
required by law, a health care provider
who commits professional misconduct
by disclosing confidential information
may be subject to professional and legal
sanctions. For a more extended
discussion of a provider’s duty of
confidentiality, the consequences of
breaching this duty, and exceptions to
the general rule of confidentiality, see
infra Section III.
14
N.Y. Pub. Health Law § 2504(2)
(McKinney 2017) (“Any person who . . .
has borne a child may give effective
consent for medical, dental, health and
hospital services for his or her child.”).
Except in certain circumstances outlined
in this booklet, minors may receive
medical treatment only with the consent
of their parents or custodians. See
Sombrotto v. Christiana W., 852 N.Y.S.2d
57 (App. Div. 1st Dep’t 2008) (reversing
order that authorized administration of
psychotropic drugs to minor patient over
parents’ objection and reviewing basis of
and limitations upon parents’ right to
direct health care of minor children);
Alfonso v. Fernandez, 606 N.Y.S.2d 259,
262 (App. Div. 2d Dep’t 1993) (recogniz-
ing the common law rule requiring
parental consent for the provision of
health services to a minor); T.D. v. N.Y.S.
Office of Mental Health, 650 N.Y.S.2d
173, 191−93 (1st Dep’t 1996) (invalidating
regulations that permitted medical
research on children without the consent
of a parent or guardian); In re AB, 768
N.Y.S.2d 256, 270 (Sup. Ct. 2003)
(recognizing the parental right to
determine or refuse treatment for minor
children).
The parent who gives consent will
normally be one with whom the child has
a close ongoing relationship. Questions
sometimes arise, however, about the
legal sufficiency of the consent of a
biological parent with whom the minor
has no real relationship. While there is
no case directly on point, the analogous
case law suggests that a health care
professional should be wary of relying on
such consent. See Hodgson v.
Minnesota, 497 U.S. 417, 437−44 (1990)
(detailing the harms of requiring
two-parent consent for abortion,
especially in families in which one parent
is long absent); see also Lehr v.
Robertson, 463 U.S. 248, 261−62,
266−67 (1983) (holding that an unwed
father has no right to notice and consent
93Teenagers, Health Care, and the Law
END NOTES
to the adoption of his biological child
unless he has taken the available
opportunities to develop parental
bonds to the child). A health profes-
sional should consult an attorney or the
NYCLU if presented with a case in
which a minor patient seeks to rely on
the consent of an otherwise absentee
parent to authorize medical care.
15
18 N.Y.C.R.R. 441.22(d) (2017) (“Prior to
accepting a foster child into care in
cases of voluntary placement . . .
authorization in writing must be
requested from the child’s parent or
guardian for routine medical and/or
psychological assessments, immuniza-
tions and medical treatment, and for
emergency medical or surgical care in
the event that the parent or guardian
cannot be located at the time such care
becomes necessary. Such authoriza-
tion must become a permanent part of
the child’s medical record.”).
16
18 N.Y.C.R.R. 441.22(d) (2017).
17
See, e.g., In re Storar, 52 N.Y.2d 363,
380 (1981) (interpreting N.Y. Pub. Health
Law § 2504(2) to authorize a “parent or
guardian . . . to consent to medical
treatment on behalf of an infant”),
superseded by statute on other
grounds, N.Y. Surr. Ct. Proc. Act §
1750-b(1) (McKinney 2017) (allowing
guardians of adults with intellectual
disabilities to decline or withdraw
life-sustaining treatment); see also N.Y.
Pub. Health Law § 2442 (McKinney
2017) (requiring the consent of a parent
or legal guardian in order to include a
minor in a medical research protocol).
18
N.Y. Pub. Health Law § 2504(2)
(McKinney 2017); N.Y. Gen. Oblig. Law §
5-1551 (McKinney 2017).
19
N.Y. Soc. Serv. Law § 383-b (McKinney
2017); see also 18 N.Y.C.R.R. § 507.1(a)
(2017) (requiring the local social
services district to provide “compre-
hensive medical services for children in
foster care”); 18 N.Y.C.R.R. 441.22(f), (g)
(2017) (detailing services to be
provided). But see In re Martin F., 820
N.Y.S.2d 759, 772 (Fam. Ct. 2006)
(invalidating N.Y. Soc. Serv. Law §
383-b insofar as it would allow the
government to authorize administration
of psychotropic drugs to a young foster
child without the parent’s consent); In
re Lyle A., 830 N.Y.S.2d 486 (Fam. Ct.
2006) (requiring health care providers
to obtain a court order before
administering psychotropic medication
to a child in foster care against the
wishes of the child’s parent).
20
N.Y. Pub. Health Law § 2504(5)
(McKinney 2017). A caregiver other than
a parent, guardian, or custodian may
not consent to a vaccination if that
person has reason to believe that the
parent, guardian, or custodian would
object to the child’s vaccination,
however. Id.; see also N.Y. Pub. Health
Law § 2164(1)(b) (McKinney 2017)
(defining “person in parental relation to
a child” as used in Pub. Health Law §
2504(5)).
21
N.Y. Pub. Health Law § 2305(2)
(McKinney 2017); 10 N.Y.C.R.R. § 23.1
(2017).
22
N.Y. Pub. Health Law § 2504(1)
(McKinney 2017) (“Any person who . . .
has been married may give effective
consent for medical, dental, health and
hospital services for himself or herself,
and the consent of no other person
shall be necessary.”); see also N.Y.
Mental Hyg. Law § 22.11 (McKinney
2017) (stating that married minors may
consent to treatment for chemical
dependence without a requirement to
notify the minor’s parents or guardian).
Note that under New York law, a person
must be at least 18 years old to consent
to marry, and marriage is prohibited for
those younger than 17, even with
parental consent. N.Y. Dom. Rel. Law §§
7(1), 15-a (McKinney 2017).
23
N.Y. Pub. Health Law § 2504(1)
(McKinney 2017) (“Any person who . . .
94 Teenagers, Health Care, and the Law
is the parent of a child . . . may give
effective consent for medical, dental,
health and hospital services for himself
or herself, and the consent of no other
person shall be necessary.”).
24
N.Y. Pub. Health Law § 2504(2)
(McKinney 2017) (“Any person who has
been married or who has borne a child
may give effective consent for medical,
dental, health and hospital services for
his or her child.”).
25
N.Y. Pub. Health Law § 2504(3)
(McKinney 2017) (“Any person who is
pregnant may give effective consent for
medical, dental, health and hospital
services relating to prenatal care.”).
26
See, e.g., Colautti v. Franklin, 439 U.S.
379, 387 (1979) (citing cases that
establish “the importance of affording
the physician adequate discretion in the
exercise of his medical judgment”).
27
Zuckerman v. Zuckerman, 546 N.Y.S.2d
666, 668 (2d Dep’t 1989) (citing
Gittleman v. Gittleman, 438 N.Y.S.2d 130,
132 (2d Dep’t 1989)); see also Matter of
Bates v. Bates, 310 N.Y.S.2d 26 (Fam. Ct.
Westchester Cty. 1970).
28
N.Y. Fam. Ct. Act § 413(1)(b)(2) (McKinney
2017) (“‘Child support’ shall mean a sum
to be paid pursuant to court order or
decree by either or both parents or
pursuant to a valid agreement between
the parties for care, maintenance and
education of any unemancipated child
under the age of twenty-one years.”).
29
Id.; see also Merril Sobie, Supplemental
Practice Commentaries to N.Y. Fam. Ct.
Act § 413, Emancipation of the Child
(McKinney 2016) (following text of
statute) (“The emancipation of the child
terminates the parental obligation to
support.”). Note, however, that a child
may reverse an emancipation and regain
a right to parental support by again
becoming dependent on a parent. Baker
v. Baker, 11 N.Y.S.3d 370, 371 (4th Dep’t
2015) (stating that a child’s unemanci-
pated status may be revived provided
there has been a sufficient change in
circumstances to warrant the corre-
sponding change in status); see also
Hamdy v. Hamdy, 612 N.Y.S.2d 718 (4th
Dep’t 1994) (finding that “permitting
reversion to unemancipated status is
consistent with the statutory principle
that parents are responsible for the
support of their dependent children until
the children attain the age of 21”).
30
Bogin v. Goodrich, 696 N.Y.S.2d 317 (3d.
Dep’t 1999) (stating “children are
deemed emancipated if they attain
economic independence through
employment, entry into military service
or marriage and, further, may be deemed
constructively emancipated if, without
cause, they withdraw from parental
supervision and control”). For a
discussion of emancipation through
economic independence, see generally
Alice C. v. Bernard G.C., 602 N.Y.S.2d
623 (2d Dep’t 1993); Eason v. Eason, 446
N.Y.S.2d 392, 393 (2d Dep’t 1982);
Thomas B. v. Lydia D., 886 N.Y.S.2d 22
(1st Dep’t 2009). For a discussion of
emancipation through entry into military
service, see generally Zuckerman v.
Zuckerman, 546 N.Y.S.2d 666 (2d Dep’t
1989); see also Crimmins v. Crimmins,
745 N.Y.S.2d 686, 689 (Fam. Ct. Orange
Cty. 2002) (stating “when a young
person is in active service to our country
that he or she is in a ‘state of emancipa-
tion’”). But see Fauser v. Fauser, 271
N.Y.S.2d 59, 61 (Fam. Ct. Nassau Cty.
1966) (holding that a minor may
unemancipate him- or herself upon
completion of military service by
becoming dependent again on his or her
parents). For a discussion of emancipa-
tion through marriage, see Henry v. Boyd,
473 N.Y.S.2d 892 (4th Dep’t 1984);
Cochran v. Cochran, 196 N.Y. 86 (2d
Dep’t 1909); Bach v. Long Island Jewish
Hosp., 267 N.Y.S.2d 289 (Sup. Ct. Nassau
Cty. 1966). For a discussion of construc-
tive emancipation by withdrawal from
parental supervision and control, see
generally In re Roe v. Doe, 29 N.Y.2d 188
95Teenagers, Health Care, and the Law
END NOTES
(1971); Kershaw v. Kershaw, 701 N.Y.S.2d
739 (3d Dep’t 2000); Matter of Ogborn
v. Hilts, 701 N.Y.S.2d 759 (3d Dep’t
2000); Foster v. Diagle, 809 N.Y.S.2d
228 (3d Dep’t 2006); Labanowski v.
Labanowski, 772 N.Y.S.2d 734 (3d Dep’t
2004); see also Merril Sobie,
Supplemental Practice Commentaries
to N.Y. Fam. Ct. Act § 413, Emancipation
of the Child (McKinney 2016) (following
text of statute) (“[T]he doctrine of
[self-emancipation] is almost
exclusively applied only when the child
has attained the majority age of
eighteen.”); see also N.Y.S. Unified
Court Sys., Child and/or Spousal
Support Frequently Asked Questions
(“A child may also be considered
‘emancipated’ if he or she is between 17
and 21, leaves the parents’ home and
refuses to obey the parents’ reasonable
commands.”), https://www.nycourts.
gov/courts/nyc/family/faqs_support.
shtml.
31
Telephone interview with Michael
Williams, Staff Attorney, The Door
(June 12, 2017). See The Door’s website
for more information, http://www.door.
org /.
32
Id.
33
Id.
34
N.Y. Correct. Law § 140(2) (McKinney
2017). Routine mental health treatment
is defined to exclude psychiatric
administration of medication unless it
is part of an ongoing mental health plan
or unless it is otherwise authorized by
law. Id. For more information on what
mental health services the law
authorizes a minor to consent to, see
infra Section IV (Mental Health
Counseling and Services).
35
N.Y. Pub. Health Law § 2505-a
(McKinney 2017).
36
N.Y. Penal Law § 70.20(1)(b) (McKinney
2017); N.Y. Correct. Law § 140(1)
(McKinney 2017).
37
N.Y. Penal Law § 70.20(1)(c) (McKinney
2017); N.Y. Correct. Law § 140(1)
(McKinney 2017).
38
N.Y. Penal Law § 70.20(1)(d) (McKinney
2017); N.Y. Correct. Law § 140(3)
(McKinney 2017).
39
N.Y. Correct. Law § 140(4) (McKinney
2017); N.Y. Penal Law § 70.20(1)(e)
(McKinney 2017).
40
N.Y. Fam. Ct. Act § 355.4 (McKinney 2017).
41
Doriane Lambelet Coleman & Philip M.
Rosoff, The Legal Authority of Mature
Minors to Consent to General Medical
Treatment, 131 Pediatrics 786, 790-91
(2013) (Table 1: listing states with
statutory or judicial mature minor
doctrines), http://pediatrics.aappubli-
cations.org/content/131/4/786.
42
In re Application of Long Island Jewish
Med. Ctr., 557 N.Y.S.2d 239, 243 (Sup.
Ct. Queens Cty. 1990) (discussing
“mature minor” doctrine in the context
of finding that a nearly 18-year-old
cancer patient lacked the maturity to
decline lifesaving blood transfusions
and recommending “that the legislature
or the appellate courts take a hard look
at the ‘mature minor’ doctrine and
make it either statutory or decisional
law in New York State”).
43
See, e.g., Am. Med. Ass’n Council on
Ethical and Judicial Affairs,
Amendment to E-5.055 (Resolution
1-A-12), “Confidential Care for Minors,”
(2013) (stating that “confidential care
for adolescents is critical to improving
patient health and that, while parental
involvement in children’s health should
generally be encouraged, parental
consent should not act as a barrier to
needed medical care” and “physicians
should always permit competent
96 Teenagers, Health Care, and the Law
minors to consent to medical care, only
notifying parents with the patient’s
consent”), https://www.ama-assn.org/
sites/default/files/media-browser/
public/about-ama/councils/Council%20
Reports/council-on-ethics-and-judi-
cial-affairs/ceja-3a13.pdf; see also Am.
Med. Ass’n, Code of Medical Ethics’
Opinion on Adolescent Care, Opinion
5.055 – Confidential Care for Minors,
Journal of Ethics, Vol. 16, No. 11: 901-902
(Nov. 2014) (enacting an amendment to
E-5.055, stating, “physicians who treat
minors have an ethical duty to promote
the autonomy of minor patients by
involving them in the medical deci-
sion-making process to a degree
commensurate with their abilities”),
http://journalofethics.ama-assn.
org/2014/11/coet1-1411.html; Am. Acad.
of Pediatrics, Informed Consent in
Decision-Making in Pediatric Practice,
Pediatrics, Vol. 138, No. 2 (Aug. 2016)
(stating “the mature-minor doctrine
recognizes that there is a subset of
adolescents who have adequate maturity
and intelligence to understand and
appreciate an intervention’s benefits,
risks, likelihood of success, and
alternatives and can reason and choose
voluntarily. Most states have mature-mi-
nor statutes in which the minor’s age,
overall maturity, cognitive abilities, and
social situation as well as the gravity of
the medical situation are considered in a
judicial determination, finding that an
otherwise legally incompetent minor is
sufficiently mature to make a legally
binding decision and provide his or her
own consent for medical care.”), http://
pediatrics.aappublications.org/content/
early/2016/07/21/peds.2016-1485.
44
State law guarantees the confidentiality
of health information. 8 N.Y.C.R.R. §
29.1(b)(8) (2017) (revealing personal
information obtained in a professional
capacity without the prior consent of the
patient constitutes unprofessional
conduct). Psychologists, social workers,
and other mental health counselors are
among those professionals “licensed,
certified or registered pursuant to title
VIII of the Education Law,” and therefore
bound by confidentiality rules. 8
N.Y.C.R.R. § 29.1(b)(8) (2017); id. §§ 29.12,
29.15, 29.16. Further, the Hospital
Patients’ Bill of Rights requires
confidentiality of all information and
records regarding care. 10 N.Y.C.R.R. §
405.7(c)(13) (2017). And New York law
establishes testimonial privileges
shielding confidential patient or client
information or communications to
medical providers, psychologists, social
workers, and rape crisis counselors. N.Y.
C.P.L.R. 4504 (McKinney 2017) (“Unless
the patient waives the privilege, a person
authorized to practice medicine,
registered professional nursing, licensed
practical nursing, dentistry, podiatry or
chiropractic shall not be allowed to
disclose any information which he
acquired in attending a patient in a
professional capacity, and which was
necessary to enable him to act in that
capacity.”), 4507 (“The confidential
relations and communications between
a psychologist registered under the
provisions of article one hundred
fifty-three of the education law and his
client are placed on the same basis as
those provided by law between attorney
and client, and nothing in such article
shall be construed to require any such
privileged communications to be
disclosed.”), 4508 (“A person licensed as
a licensed master social worker or a
licensed clinical social worker under the
provisions of article one hundred
fifty-four of the education law shall not
be required to disclose a communication
made by a client, or his or her advice
given thereon, in the course of his or her
professional employment . . . .”), 4510 (“A
rape crisis counselor shall not be
required to disclose a communication
made by his or her client to him or her, or
advice given thereon, in the course of his
or her services. . . . “).
In addition, federal and state law require
the consent of a patient or other
qualified person before health
information may be shared. 45 C.F.R. §
164.508 (2017) (requiring patient
97Teenagers, Health Care, and the Law
END NOTES
authorization for disclosure of health
information); 10 N.Y.C.R.R. 300.5(a)
(2017) (requiring authorization from the
patient or another qualified person for
sharing of electronic health records
among health care entities); N.Y.
Statewide Collaboration Process,
Privacy and Security Policies and
Procedures for Qualified Entities and
Their Participants in New York State
under 10 N.Y.C.R.R. § 300.3(b)(1) § 1.1
(Version 3.4, June 2017) (requiring
affirmative patient consent for sharing
of electronic health information among
health care entities), https://www.
health.ny.gov/technology/regulations/
shin-ny/docs/privacy_and_security_
policies.pdf.
45
Regulations issued under the federal
Health Insurance Portability and
Accountability Act (HIPAA) provide that
the minor is the “individual,” vested
with authority to consent or deny
consent to the disclosure of health
information, when “[t]he 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
[the parent or guardian] be treated as
the personal representative [who
stands in for the minor].” 45 C.F.R. §
164.502(g)(3)(i)(A) (2017).
46
45 C.F.R. 164.502(g)(3)(i)(C) (2017).
47
10 N.Y.C.R.R. 300.1(h) (2017); see also
10 N.Y.C.R.R. § 300.5(b)(4) (2017).
48
10 N.Y.C.R.R. 300.5(b)(3)(ii) (2017).
While protecting “minor consent
patient information” from disclosure to
parents, the New York regulations give
those same parents the right to
authorize the disclosure of such
information to entities that participate
in the Statewide Health Information
Network, unless the minor is emanci-
pated or “federal law or regulation
requires the minor’s authorization.” 10
N.Y.C.R.R. 300.5(b)(3)(i) (2017). For
further discussion of this regulation,
see infra notes 97−100 and accompany-
ing text.
49
The federal HIPAA regulations, in turn,
provide that when state or other law
explicitly grants or denies parents
access to a minor’s health information,
that law controls regardless of who
consented to the treatment at issue. 45
C.F.R. § 164.502(g)(3)(ii)(A), (B) (2017).
Because health care providers who
participate in the Statewide Health
Information Network for New York are
expressly forbidden to share health
information about minor patients with
their parents when the minor
consented to the service that is the
subject of the information, a breach of
the state rule would also violate the
federal rule.
50
45 C.F.R. §§ 160.400 to 160.506 (2017).
51
N.Y. Statewide Collaboration Process,
Oversight & Enforcement Policies and
Procedures for QEs § 2.1.1 (Version 1.2.1
March 2016), https://www.health.
ny.gov/technology/regulations/shin-ny/
docs/oversight_and_enforcement_poli-
cies.pdf.
52
Any unprofessional conduct, see 8
N.Y.C.R.R. § 29.1 (2017), is professional
misconduct, N.Y. Educ. Law §§ 6509(9)
(McKinney 2017). Professional
misconduct is punishable by repri-
mands, suspension or revocation of a
license, fines, and other penalties. Id. §
6511.
53
See, e.g., Burton v. Matteliano, 916
N.Y.S.2d 438, 440-41 (App. Div. 4th
Dep’t 2011); MacDonald v. Clinger, 446
N.Y.S.2d 801, 802 (App. Div. 4th Dep’t
1982).
54
N.Y. Pub. Health Law § 18(2)(c)
(McKinney 2017). Federal law
reinforces that state law prohibitions
on disclosure of health information
98 Teenagers, Health Care, and the Law
govern. 45 C.F.R. 164.502(g)(3)(ii)(B)
(2017) (“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 . . . to, protected health
information about an unemancipated
minor to a parent, guardian, or other
person acting in loco parentis.”).
Moreover, even if a parent consented to
the care, federal regulations permit (but
do not require) a health care provider to
deny a parent access to information if
the provider determines in the exercise
of professional judgment that such
access is “reasonably likely to cause
substantial harm to the individual
[minor] or another person.” 45 C.F.R.
164.524(a)(3)(iii) (2017).
55
N.Y. Pub. Health Law § 18(3)(c) (McKinney
2017).
56
45 C.F.R. 164.502(g)(5) (2017).
57
45 C.F.R. 164.502(g)(3)(i)(C) (2017).
58
This includes employees who act in
concert with or as agents of the health
care professional, such as receptionists.
See Desai v. Blue Shield of Northeastern
N.Y., 540 N.Y.S.2d 569, 571 (App. Div. 3d
Dep’t 1989); People v. Mirque, 758
N.Y.S.2d 471, 474 (Crim. Ct. Bronx Cty.
2003). Confidentiality rules apply to
other types of persons in certain
situations. For example, social services
workers are among those forbidden to
disclose confidential HIV-related
information. See infra notes 145−146
and accompanying text.
59
Family Educational Rights and Privacy
Act (FERPA), 20 U.S.C. §§ 1232g(a)(1)(A),
(B) (2017) (requiring schools that receive
federal funding to give parents the right
to “inspect and review the education
records of their children”); N.Y. Educ.
Law § 2-d(3)(b)(2) (McKinney 2017)
(“Parents have the right to inspect and
review the complete contents of their
child’s education record.”).
60
FERPA, 20 U.S.C. § 1232g(a)(4)(A) (2017).
61
Owasso Indep. Sch. Dist. v. Falvo, 534
U.S. 426, 433 (2002).
62
See, e.g., N.Y. Educ. Law §§ 901, 903-905
(McKinney 2017) (requiring health and
dental screenings and certificates as a
condition of enrollment and mainten-
ance of the related records in school
files); 8 N.Y.C.R.R. § 136.3(a)(2) (2017) (“It
shall be the duty of the trustees and
boards of education: . . . except where
otherwise prohibited by law, to advise, in
writing, the parent of, or other persons in
parental relation to, each student in
whom any aspect of the total school
health program indicates such student
has defective sight or hearing, or a
physical disability or other condition
which may require professional attention
with regard to health. . . .”). Despite the
broad language of this regulatory
requirement, courts have read it to apply
only to the records of mandatory health
screenings. Port Washington Teachers’
Ass’n v. Bd. of Educ., 478 F.3d 494, 501
n.3 (2d Cir. 2007) (noting that New York
courts have limited the reach of the
regulation to requiring notice to parents
of the results of tests for sight, hearing,
and sickle cell anemia, which are
mandated by the authorizing legislation,
N.Y. Educ. Law § 904) (citing Bello v. Bd.
of Educ., 527 N.Y.S.2d 924 (4th Dep’t
1988)).
63
See Owasso, 534 U.S. at 433−34. While
FERPA exempts from disclosure records
that remain “in the sole possession of
the maker thereof and which are not
accessible or revealed to any other
person except a substitute,” 20 U.S.C. §
1232g(a)(4)(B)(i) (2017), this exemption
may have limited utility. Health records
are often shared beyond the profes-
sional who makes them. Moreover,
another provision explicitly exempts
from disclosure to parents the health
treatment records of students who are
over 18 or in postsecondary educational
institutions. 20 U.S.C. § 1232g(a)(4)(B)(iv)
(2017). This provision implies that the
99Teenagers, Health Care, and the Law
END NOTES
health records of minors under 18 or
not yet in postsecondary education are
generally accessible to parents.
64
42 U.S.C. 290dd-2 (2017). Note,
however, that this law predates FERPA,
and no court had decided which
statute governs in the case of a conflict
over whether a disclosure to parents is
mandated or prohibited.
65
42 U.S.C. 290dd-2(b) (2017).
66
The concept of personal liberty
grounded in the Due Process Clause of
the 14th Amendment of the United
States Constitution creates a federal
right of privacy against the public
disclosure of an individual’s private
affairs by the government. Whalen v.
Roe, 429 U.S. 589, 598-60 & nn. 23-26
(1977) (citing Roe v. Wade, 410 U.S. 113,
152-153 (1973)). See, e.g., Sterling v.
Minersville, 232 F.3d 190, 194-96 (3d
Cir. 2000) (holding that the disclosure
of an individual’s sexual orientation by
a police officer would be a violation of
that individual’s constitutional privacy
right where there is no “genuine,
legitimate and compelling” governmen-
tal interest in disclosure) (quoting Doe
v. Southeastern Pa. Transp. Auth., 72
F.3d 1133, 1141 (3d Cir.1995)); Gruenke v.
Seip, 225 F.3d 290, 302-03 (3d Cir.
2000) (holding that a public school
gym teacher who compelled a student
to take a pregnancy test and failed to
keep the test confidential violated the
student’s 14th Amendment privacy
rights). In addition, the various
professions maintain ethical standards
that may counsel against disclosure.
See, e.g., Nat’l Ass’n of Soc. Workers,
NASW Standards for the Practice of
Social Work with Adolescents 15−16
(Standard 8 – Confidentiality: “Social
workers shall maintain adequate
safeguards for privacy and confidenti-
ality in their relationships with
youths.”), http://www.socialworkers.
org/LinkClick.aspx?fileticket=rUt4ybE_
GW4%3d&portalid=0; Nat’l Educ.
Ass’n, Code of Ethics (Principle I
– Commitment to the Student: “[T]he
educator . . . [s]hall not disclose
information about students obtained in
the course of professional service
unless disclosure serves a compelling
professional purpose or is required by
law.”), http://www.nea.org/
home/30442.htm.
67
8 N.Y.C.R.R. § 29.1(b)(8) (2017); N.Y.
Educ. Law §§ 6509-6511 (McKinney
2017); Burton, 916 N.Y.S.2d at 440-41;
MacDonald, 446 N.Y.S.2d at 802.
68
FERPA, 20 U.S.C. § 1232g(b)(2)(A)
(2017).
69
See Port Washington Teachers’ Ass’n v.
Bd. of Educ., 478 F.3d 494, 502 (2d Cir.
2007) (dismissing for lack of standing
challenge by social worker and
teachers’ unions to what the court
characterized as a nonmandatory
district policy advising school social
workers to report student pregnancies
to parents; characterizing as “dicta” the
trial court’s decision upholding the
policy).
70
In addition to duties to report
discussed in this section, New York
laws and regulations also mandate
reports of contagious disease, N.Y. Pub.
Health Law § 2101 (McKinney 2017);
vital statistics, N.Y. Pub. Health Law,
Article 41 (McKinney 2017); bites by
rabid animals, 10 N.Y.C.R.R. § 2.14
(2017); congenital malformations, N.Y.
Pub. Health Law § 2733 (McKinney
2017); lead poisoning, N.Y. Pub. Health
Law § 1370-a(c) (McKinney 2017);
pesticide poisoning, 10 N.Y.C.R.R. §§
22.11-.12 (2017); radiation illness and
injury, 10 N.Y.C.R.R. § 16.9(c) (2017); and
inflamed eyes within two weeks of
birth, N.Y. Pub. Health Law § 2502
(McKinney 2017).
71
See, e.g., Am. Coll. of Obstetricians &
Gynecologists, Comm. on Adolescent
Health Care, Comm. Op. No. 599,
Adolescent Confidentiality and
Electronic Health Records (May 2014,
100 Teenagers, Health Care, and the Law
reaffirmed 2016) (recommending that
health care providers inform parents and
adolescents that the information each
shares will be treated confidentially and
advise them of any restrictions on the
confidential nature of the relationship),
http://www.acog.org/Resources-And-
Publications/Committee-Opinions/
Committee-on-Adolescent-Health-Care/
Adolescent-Confidentiality-and-
Electronic-Health-Records; Confidential
Health Care for Adolescents: Position
Paper of the Society for Adolescent
Medicine, 35 J. Adolescent Health 160,
164 (2004) (advising professionals to
discuss with minor patients circum-
stances that might result in breaches of
confidentiality), https://www.adolescen-
thealth.org/SAHM_Main/media/
Advocacy/Positions/Aug-04-
Confidential_Health_Care_for_
Adolescents.pdf.
72
The following professionals who work
with young people are mandated
reporters: physicians (including
surgeons, residents, and interns) and
registered physician assistants;
registered nurses; emergency medical
technicians; mental health professionals
(including psychologists, substance
abuse counselors, and alcoholism
counselors); other health professionals
(including dentists and dental hygien-
ists, podiatrists, osteopaths,
optometrists, chiropractors, and
Christian Science practitioners); hospital
personnel involved in patient admis-
sions, examinations, care, or treatment;
school officials (including teachers,
coaches, guidance counselors, and
principals); social services workers;
employees or volunteers in certain
residential care facilities; child care and
foster care workers; law enforcement
officials (including police officers, peace
officers, district attorneys, assistant
district attorneys, and investigators
employed by the district attorney’s
office). N.Y. Soc. Serv. Law § 413(1)
(McKinney 2017). Therefore, if any of
these professionals, in the course of
their official duties, learn of information
that creates a reasonable suspicion that
a child is being harmed by a caregiver,
the professional must report this
suspicion to the State Central Register.
73
A custodian includes any person
continually or regularly found in the
same household as the child whose
conduct causes or contributes to the
abuse or neglect of the child. N.Y. Soc.
Serv. Law § 412(3) (McKinney 2017); N.Y.
Fam. Ct. Act § 1012(g) (McKinney 2017).
74
N.Y. Soc. Serv. Law § 413(1)(a) (McKinney
2017).
75
N.Y. Soc. Serv. Law § 413(1)(b) (McKinney
2017).
76
N.Y. Soc. Serv. Law § 412(1) (McKinney
2017); N.Y. Fam. Ct. Act § 1012(e)
(McKinney 2017). Under these laws, a
caregiver commits abuse if the caregiver
(1) inflicts or allows the infliction of a
nonaccidental, physical injury that
causes substantial risk of serious
physical or emotional harm; or (2)
creates or allows the creation of
substantial risk of nonaccidental
physical injury that is likely to cause
serious physical or emotional harm; or
(3) commits or allows to be committed a
sexual offense against the minor.
77
A parent, guardian, custodian, or other
person responsible for a minor’s care
engages in child neglect by failing to
exercise a minimum degree of care,
thereby causing, allowing, or creating a
substantial risk of physical or emotional
harm to the child, or by abandoning a
child. N.Y. Soc. Serv. Law § 412(2)
(McKinney 2017); N.Y. Fam. Ct. Act §
1012(f) (McKinney 2017).
78
The term “allows” in the context of child
neglect is intended to address the parent
or legal caregiver who knew or “should
have known about the abuse and failed
to exercise a minimum degree of care to
prevent or stop it.” Nicholson v.
Scoppetta, 787 N.Y.S.2d 196, 203 (Ct.
101Teenagers, Health Care, and the Law
END NOTES
App. 2004) (holding that a battered
mother may be found to have neglected
her children “not because she is a
victim of domestic violence or because
her children witnessed the abuse, but
rather because a preponderance of the
evidence establishes that the children
were actually or imminently harmed by
reason of her failure to exercise even
minimal care in providing them with
proper oversight”); id. at 302 (“Courts
must evaluate parental behavior
objectively: would a reasonable and
prudent parent have so acted, or failed
to act, under the circumstances then
and there existing.”) (citations omitted);
see also In re Christina P., 713 N.Y.S.2d
743 (2d Dep’t 2000) (finding a mother
had neglected her daughter by failing
to protect her from sexual abuse by the
mother’s paramour, about which the
mother knew or should have known); In
re Katherine C., 471 N.Y.S.2d 216, 219
(Fam. Ct. Richmond Cty. 1984) (same).
79
N.Y. Soc. Serv. Law § 420 (McKinney
2017) (providing criminal and civil
penalties for a mandated reporter who
willfully fails to report). A mandated
reporter who has reason to suspect
child abuse, but who is not certain
whether the surrounding circum-
stances fulfill the legal definition of
abuse, should nonetheless file a report
and allow the Register to make the
legal determination. Kimberly S.M. v.
Bradford Cent. Sch., 649 N.Y.S.2d 588,
591 (App. Div. 4th Dep’t 1996) (holding
that a teacher, as a mandated reporter,
“is obligated to report suspected cases
of child sexual abuse based upon facts
and circumstances within the
knowledge of the reporter at the time
the abuse is suspected and may be
held liable for a breach of that duty
even though it might ultimately be
determined that the abuse was not
committed or allowed to have been
committed by a ‘person legally
responsible’ for the child”).
80
N.Y. Soc. Serv. Law § 419 (McKinney
2017) (immunizing mandated reporters
from liability for making reports if they
acted in good faith; presuming good
faith of those who act within the scope
of their employment and without
misconduct or gross negligence). See,
e.g., Rine v. Chase, 765 N.Y.S.2d 648
(App. Div. 2d Dep’t 2003) (affirming
dismissal of a complaint against a
social worker who made child abuse
reports, later found to be unsubstanti-
ated, based on statements children
made in therapy); Kempster v. Child
Protective Servs., 515 N.Y.S.2d 807
(App. Div. 2d Dep’t 1987) (dismissing a
complaint against a hospital for making
a child abuse report, later found to be
unsubstantiated, based on suspicious
injuries to a 14-month-old baby). Courts
have recognized that the grant of
immunity is intended to “encourage the
reporting of child abuse situations, and
thereby afford children greater
protection.” Brown v. City of N.Y., 870
N.Y.S.2d 217, 223 (Sup. Ct. N.Y. Cty.
2008). This purpose would appear to be
frustrated by a provision of the penal
law that makes it a misdemeanor to
“[r]eport, by word or action, an alleged
occurrence or condition of child abuse
or maltreatment . . . which did not in
fact occur or exist” to either the
statewide central register or to any
mandated reporter. N.Y. Penal Law §
240.50(4) (McKinney 2017). No court
has resolved this tension, but due
process would pose a serious obstacle
to the prosecution of a person for
making a good-faith report of child
abuse just because it later turns out to
be unfounded.
81
Any oral or written allegation of abuse
by a school employee or volunteer
made to a teacher, school nurse, school
psychologist, school social worker,
guidance counselor, school administra-
tor, school board member, or other
school personnel required to hold a
teaching or administrative license or
certificate must be forwarded, in the
form of a written report, to the school
administrator. N.Y. Educ. Law § 1126
(McKinney 2017). Upon receipt of a
102 Teenagers, Health Care, and the Law
report that gives rise to a reasonable
suspicion that such abuse has occurred,
the administrator must report such
allegation to the child’s parent(s), to the
school superintendent, and to
“appropriate law enforcement authori-
ties.” N.Y. Educ. Law § 1128 (McKinney
2017). Such authorities include the local
police or sheriff, but not child protective
services or other organizations for the
prevention of cruelty to children. N.Y.
Educ. Law § 1125 (7) (McKinney 2017).
Any person who, in good faith, either
makes or transmits such a report is
immunized from civil liability, N.Y. Educ.
Law §§ 1126(3), 1128(4) (McKinney 2017),
and any person who willfully fails to
submit a report to a school administrator
or to appropriate law enforcement
authorities will be guilty of a Class A
misdemeanor and may be civilly liable up
to five thousand dollars, N.Y. Educ. Law §
1129 (McKinney 2017).
82
N.Y. Fam. Ct. Act § 1012(e)(iii) (McKinney
2017) (defining “abused child” to include
minors whose parent or other legally
responsible person “commits, or allows
to be committed an offense against such
child defined in article one hundred
thirty of the penal law [delineating sex
offenses].”).
83
N.Y. Penal Law § 130.20(1)-(2) (McKinney
2017) (defining sexual misconduct as
engaging in sexual intercourse (meaning
vaginal sex) or oral or anal sex with
another person “without such person’s
consent”); N.Y. Penal Law § 130.05(2)(b)
(McKinney 2017) (“Lack of consent
results from . . . [i]ncapacity to
consent.”); N.Y. Penal Law § 130.05(3)(a)
(McKinney 2017) (“A person is deemed
incapable of consent when he or she is .
. . less than 17 years old.”). Other
“statutory rape” sex crimes, which are
felonies and therefore carry a greater
penalty, will apply when the minor is
under a certain age and the minor’s
partner is over a certain age, even when
the sexual activity is consensual. The
following rape laws apply only to vaginal
intercourse: Third-degree rape occurs
when the minor is 16 or younger and the
partner is 21 or older, N.Y. Penal Law §
130.25(2) (McKinney 2017); second-de-
gree rape occurs when the minor is
younger than 15 and the partner is 18 or
older, except that it is an affirmative
defense if the defendant is less than four
years older than the alleged victim, N.Y.
Penal Law § 130.30 (McKinney 2017); and
first-degree rape occurs when the minor
is younger than 13 and the partner is 18
or older, or when the minor is younger
than 11 and the partner is any age, N.Y.
Penal Law § 130.35(3), (4) (McKinney
2017). An additional set of sex crimes,
with the same age differences
corresponding to the same degrees,
applies to oral and anal sex. N.Y. Penal
Law §§ 130.40(2), 130.45(1), 130.50(3)-(4)
(McKinney 2017). Another relevant sex
crime is sexual abuse, characterized by
“sexual contact” – meaning any touching
of “intimate” parts. Third-degree sexual
abuse (a misdemeanor) occurs when the
minor is 16 or younger and the partner is
more than five years older, N.Y. Penal
Law § 130.55 (McKinney 2017);
second-degree sexual abuse (a
misdemeanor) occurs when the minor is
13 or younger and the partner is any age,
N.Y. Penal Law § 130.60 (McKinney 2017);
and first-degree sexual abuse (a felony)
occurs when the minor is 10 or younger
and the partner is any age, N.Y. Penal
Law § 130.65 (McKinney 2017). The
legislature’s establishment of this age
division was upheld as constitutional in
People v. Dozier, 424 N.Y.S.2d 1010, 1014
(App. Div. 1st Dep’t 1980) (holding that
even in the case of consensual sexual
activity, these sexual offense statutes
serve state interests such as the
prevention of teenage pregnancy and
physical injury as well as immature
decisions relating to forced marriages,
parenthood, adoption, and abortion).
84
Holding parents criminally liable for a
child’s sexual activity “fails to take into
account the reality that the degree of
supervision a parent is able to exert
diminishes as a child’s freedom,
independence, age, and privacy
103Teenagers, Health Care, and the Law
END NOTES
increase. In addition, it fails to
recognize that the nature of parental
supervision is frequently determined by
the age of the parent, by culture, by
religion, and by the child’s gender.
Moreover, the imposition of legal
liability presupposes that premature
sexual activity occurs only in children
whose parents do not teach proper
moral values or offer role models
consistent with that teaching, and fails,
as well, to reflect an awareness that
teenage pregnancies are the product of
behaviors ranging from experimenta-
tion to outright defiance of parental
authority.” In re Comm’r Soc. Servs. ex
rel. Leslie C., 614 N.Y.S.2d 855, 861
(Fam. Ct. Kings Cty. 1994) (dismissing
charges of abuse and neglect against
the mother of a sexually active teenage
girl); see also In re Philip M., 589
N.Y.S.2d 31 (App. Div. 1st Dep’t 1992),
aff’d, 82 N.Y.2d 238 (1993) (noting that
family court had found that a
15-year-old with a sexually transmitted
disease could not be presumed to be
the victim of child abuse, because the
minor’s age indicated that he could
have been engaged in “consensual
sexual activity”).
Data from the 2011-2013 National
Survey of Family Growth show that
nationally, just over 40 percent of
minors have sex before their 17th
birthday. Gladys M. Martinez & Joyce C.
Abma, Sexual Activity, Contraceptive
Use, and Childbearing of Teenagers
Aged 15-19 in the United States, Figure
2 (National Center for Health Statistics
Data Brief no. 209, July 2015), https://
www.cdc.gov/nchs/products/
databriefs/db209.htm. Thus, a reading
of the statutes that did not take into
account the public policies outlined by
the Leslie C. court would suggest that
the parents of more than 406,000 New
York State minors be reported on
suspicion of child abuse or neglect,
representing 40 percent of the total
1,016,517 teenagers aged 13, 14, 15, and
16 in New York State as of the 2010
census. U.S. Census Bureau, American
Factfinder, Single Years of Age and Sex:
2010 (NY), https://factfinder.census.
gov/faces/tableservices/jsf/pages/
productviewxhtml?pid=DEC_10_SF1_
QTP2&prodType=table.
85
Leslie C., 614 N.Y.S.2d 855.
86
N.Y. Mental Hyg. Law § 33.13 (McKinney
2017) protects the clinical records of
patients and clients treated at a
“facility.” The law defines a facility to
include “any place in which services for
the mentally disabled are provided,”
N.Y. Mental Hyg. Law § 1.03(6)
(McKinney 2017), and “any provider of
services for individuals with mental
illness or developmental disabilities
which is operated by, under contract
with, receives funding from, or is
otherwise approved to render services
by, a director of community services
pursuant to article forty-one of this
chapter or one or both of the offices
[i.e., the office of mental health or the
office for people with developmental
disabilities], including any such
provider which is exempt from the
requirement for an operating certificate
under article sixteen or article
thirty-one of this chapter,” N.Y. Mental
Hyg. Law § 33.13(a) (McKinney 2017).
The clinical records of patients treated
in such facilities or by such providers
are shielded from disclosure, except in
certain circumstances, such as when
disclosure is made “to an endangered
individual and a law enforcement
agency when a treating psychiatrist or
psychologist has determined that a
patient or client presents a serious and
imminent danger to that individual.”
N.Y. Mental Hyg. Law § 33.13(c)(6), (c)(9)
(v) (McKinney 2017); see also N.Y.
C.P.L.R. § 4510(b)(2) (McKinney 2017)
(rape crisis counselors “shall not be
required to treat as confidential a
communication by a client which
reveals the intent to commit a crime or
harmful act”); N.Y. C.P.L.R. § 4508(a)(2)
(McKinney 2017) (same as to social
workers).
104 Teenagers, Health Care, and the Law
87
N.Y. Mental Hyg. Law § 33.13(c)(6)
(McKinney 2017) (“Nothing in this
paragraph shall be construed to impose
an obligation upon a treating psychiatrist
or psychologist to release information
pursuant to this paragraph.”), (c)(9)(v)
(same). Under the relevant New York
case law, psychiatrists and psycholo-
gists are permitted to notify endangered
individuals and will not be liable if they
prove that their concern for the
endangered person was reasonable, but
no court has imposed on psychiatrists
and psychologists an affirmative duty to
report to the police or to endangered
persons when a patient poses a threat of
harm. Juric v. Bergstraesser, 963
N.Y.S.2d 755, 757-58 (App. Div. 3d Dep’t
2013) (recognizing that a physician may
prevail in an affirmative defense to a
patient’s suit for breach of confidential-
ity if the physician “has a reasonable
basis to believe that plaintiff posed an
actual, current, imminent threat” to
another, but holding evidence in this
case insufficient as a matter of law to
establish such an affirmative defense);
Burton v. Matteliano, 916 N.Y.S.2d 438,
440-41 (App. Div. 4th Dep’t 2011)
(reversing dismissal of complaint against
a physician for breach of confidentiality,
but noting that the physician could
assert affirmative defense based on
“competing interests [that] support the
need to disclose”) (citation omitted); Kolt
v. U.S., 1996 WL 607098 (W.D. N.Y. Oct.
2, 1996) (granting summary judgment to
a Veterans Administration hospital in a
suit by the estate of a wife who was
killed by her husband, a psychiatric
patient of the hospital, and noting the
absence of evidence that a psychiatrist
knew that the patient posed a serious
and imminent danger of harm to his
wife); Oringer v. Rotkin, 556 N.Y.S.2d 67,
68 (App. Div. 1st Dep’t 1990) (affirming
summary judgment for a psychologist
whose unrefuted records “document[ed]
his finding that plaintiff presented a
serious and imminent danger and
authorized him to disclose the threat to
the authorities and to the family of the
boy”); MacDonald v. Clinger, 446
N.Y.S.2d 801, 805 (App. Div. 4th Dep’t
1982) (stating in dicta that “where a
patient may be a danger to himself or
others, a physician is required to
disclose to the extent necessary to
protect a threatened interest,” but
affirming the denial of a motion to
dismiss a complaint that alleged breach
of confidentiality because a physician
had not asserted and proven affirmative
defense that disclosure was necessary
to prevent harm).
88
N.Y. C.P.L.R. § 4504(a) (McKinney 2017).
89
N.Y. C.P.L.R. § 4507 (McKinney 2017)
(placing this privilege on the same basis
as that between an attorney and a
client).
90
N.Y. C.P.L.R. § 4508(a) (McKinney 2017).
91
N.Y. C.P.L.R. § 4510(b) (McKinney 2017).
A “rape crisis counselor” is a person who
has been certified by an approved rape
crisis program as having satisfied New
York State training standards (see N.Y.
Pub. Health Law § 206(15) (McKinney
2017)) and who is working in an approved
rape crisis program. N.Y. C.P.L.R. §
4510(a)(2) (McKinney 2017).
92
N.Y. C.P.L.R. § 4504(a) (McKinney 2017).
93
N.Y. Fam. Ct. Act § 1046(a)(vii) (McKinney
2017). For example, a psychologist may
not claim privilege to avoid disclosing a
communication from a teenager that
suggests physical abuse by a caregiver.
94
N.Y. C.P.L.R. § 4504(b) (McKinney 2017);
N.Y. C.P.L.R. § 4508(a)(3) (McKinney
2017). This exception applies to
physicians, registered professional
nurses, licensed practical nurses,
dentists, podiatrists, chiropractors, and
social workers, but not to psychologists
or rape crisis counselors. In addition, in
certain circumstances, a provider may
be required to testify in proceedings
where the confidential information
relates to the use of controlled
105Teenagers, Health Care, and the Law
END NOTES
substances. However, the law does not
clearly delineate when this exception
should apply, and providers who are
subpoenaed to testify under such
circumstances should consult an
attorney. Compare People v. Figueroa,
568 N.Y.S.2d 957, 959 (App. Div. 1st
Dep’t 1991) (affirming conviction for
drug possession and rejecting the
defendant’s argument that doctor-
patient privilege prevented the
admission of evidence a doctor shared
with police after recovering condoms
containing illicit drugs from the
defendant’s digestive tract), with
People v. Saaratu, 541 N.Y.S. 2d 889
(Sup. Ct., Bronx Cty. 1989) (granting a
motion to quash the testimony of two
doctors who operated on the defendant
and discovered balloons containing
heroin in his stomach, and a patholo-
gist who took custody of the balloons,
on the ground that the testimony was
subject to physician-patient privilege).
Note that even if N.Y. Pub. Health Law §
3373 were interpreted to abrogate
privilege in narcotics cases, it would
not apply to patients who receive
treatment in facilities receiving federal
substance abuse treatment funding,
which are subject to stringent
confidentiality rules imposed by the
federal government that preempt or
supersede the state law. See 42 U.S.C.
§ 290dd-2(c) (2017).
95
N.Y. Penal Law § 265.25 (McKinney
2017) (requiring reports of such wounds
to be made to the police); 10 N.Y.C.R.R.
§ 405.9(c)(2)(v), (vi(c)) (2017) (requiring
hospitals to turn evidence of such
crimes over to the police if police
request it within 30 days of its
collection).
96
8 N.Y.C.R.R. § 29.1 (2017); N.Y. Educ.
Law § 6509(9) (McKinney 2017).
97
10 N.Y.C.R.R. § 300.5(b)(2) (2017); see
also N.Y. Statewide Collaboration
Process, Privacy and Security Policies
and Procedures for Qualified Entities
and Their Participants in New York
State under 10 N.Y.C.R.R. § 300.3(b)(1)
§ 1.5.1 (Version 3.4, June 2017), https://
www.health.ny.gov/technology/
regulations/shin-ny/docs/privacy_and_
security_policies.pdf.
98
10 N.Y.C.R.R. § 300.5(b)(3) (2017); see
also N.Y. Statewide Collaboration
Process, Privacy and Security Policies
and Procedures for Qualified Entities
and Their Participants in New York
State under 10 N.Y.C.R.R. § 300.3(b)(1)
§§ 1.5.2, 1.5.3 (Version 3.4, June 2017),
https://www.health.ny.gov/technology/
regulations/shin-ny/docs/privacy_and_
security_policies.pdf.
99
10 N.Y.C.R.R. § 300.5(b)(3)(i) (2017); see
also N.Y. Statewide Collaboration
Process, Privacy and Security Policies
and Procedures for Qualified Entities
and Their Participants in New York
State under 10 N.Y.C.R.R. § 300.3(b)(1)
§ 1.5.2 (Version 3.4, June 2017), https://
www.health.ny.gov/technology/
regulations/shin-ny/docs/privacy_and_
security_policies.pdf.
100
HIPAA, 45 C.F.R. § 160.103(g)(3)(i)
(2017).
101
N.Y. Statewide Collaboration Process,
Privacy and Security Policies and
Procedures for Qualified Entities and
Their Participants in New York State
under 10 N.Y.C.R.R. § 300.3(b)(1) § 1.4.2
(Version 3.4, June 2017) (“QEs [i.e.,
qualified entities] and Participants
may, but shall not be required to,
subject Sensitive Health Information to
certain additional requirements,
including but not limited to providing
patients the option to withhold certain
pieces of Sensitive Health Information
from access via the SHIN-NY [i.e.,
Statewide Health Information Network
for New York] governed by a QE.”)
(emphasis added), https://www.health.
ny.gov/technology/regulations/shin-ny/
docs/privacy_and_security_policies.
pdf.
106 Teenagers, Health Care, and the Law
102
10 N.Y.C.R.R. § 300.5(a) (2017)
(“Qualified entity participants may, but
shall not be required to, provide patients
the option to withhold patient informa-
tion, including minor consent patient
information, from the SHIN-NY.”). For a
definition of “minor consent patient
information,” see 10 N.Y.C.R.R. 300.1(h)
(2017); 10 N.Y.C.R.R. § 300.5(b)(4) (2017).
103
Harriet B. Fox & Stephanie J. Limb, State
Policies Affecting the Assurance of
Confidential Care for Adolescents,
National Alliance to Advance Adolescent
Health, April 2008 (surveying nationwide
practices of how, when, and to whom
explanations of benefits (EOBs) are
mailed when adolescents seek various
kinds of health care, and finding that
EOB mailings to minors’ homes regularly
compromise the confidentiality of health
services, including those to which the
minor was legally entitled to give
consent), http://www.thenationalalli-
ance.org/pdfs/FS5.%20State%20
Policies%20Affecting%20the%20
Assurance%20of%20Confidential%20
Care.pdf.
104
N.Y. Ins. Law § 3216(a)(4)(C) (McKinney
2017).
105
N.Y. Pub. Health Law § 4903(2)(a)
(McKinney 2017).
106
45 C.F.R. §§ 164.522(b)(1)(i), (ii) (2017); 11
N.Y.C.R.R. §§ 244.2, 244.3 (2017).
107
Griswold v. Connecticut, 381 U.S. 479,
484-85 (1965) (holding that a
Connecticut statute prohibiting use of
contraceptives by married persons
unconstitutionally intruded upon the
right of marital privacy); Eisenstadt v.
Baird, 405 U.S. 438, 443 (1972) (holding
that a Massachusetts statute permitting
married persons to obtain contracep-
tives to prevent pregnancy while
prohibiting single persons from doing the
same violated the Equal Protection
Clause of the 14th Amendment).
108
Carey v. Population Servs. Int’l, 431 U.S.
678, 693 (1977) (plurality opinion)
(invalidating New York statute that
prohibited distribution of contraceptives
to minors and holding “the right to
privacy in connection with decisions
affecting procreation extends to minors
as well as to adults”).
109
In Carey, 431 U.S. at 694-96, the Court
flatly rejected the notion that the state
could legitimately impede access to
contraceptive services as a means of
discouraging sexual activity. A minor’s
right to contraceptive services is more
qualified, however, in the context of
distribution within public schools. See
Alfonso v. Fernandez, 606 N.Y.S.2d 259,
264 (App. Div. 2d Dep’t 1993) (holding
that a condom availability program in a
public school must contain a parental
opt-out provision and distinguishing
other contexts: “The distribution of
condoms in our public high schools,
where attendance is compulsory, . . . is
quite different from making them
available at clinics, where attendance is
wholly voluntary. . . .”); Jackson v.
Peekskill City Sch. Dist., 106 F. Supp. 3d
420 (S.D.N.Y. 2015) (denying a motion to
dismiss a claim that a teacher violated
parents’ right to raise their child as they
saw fit by allegedly driving a student
off-site to obtain birth control). These
decisions, however, are limited to their
contexts and cannot be read to abrogate
minors’ well-established rights under
New York State law and the Constitution
to consent to contraceptive care in other
contexts.
110
See 42 U.S.C. 1396d(a)(4)(C) (2017)
(covering “family planning services and
supplies furnished (directly or under
arrangements with others) to individuals
of child-bearing age (including minors
who can be considered to be sexually
active) who are eligible under the State
[Medicaid] plan and who desire such
services and supplies”); 42 C.F.R. §
440.250(c) (2017) (“Family planning
services and supplies must be limited to
beneficiaries of childbearing age,
107Teenagers, Health Care, and the Law
END NOTES
including minors who can be consid-
ered sexually active and who desire the
services and supplies.”); 42 C.F.R. §§
431.300−431.307 (2017) (outlining
confidentiality protections in Medicaid
and other medical assistance
programs).
111
42 U.S.C. § 300(a) (2017) (authorizing
Title X grants to “public or nonprofit
private entities to assist in the
establishment and operation of
voluntary family planning projects
which shall offer a broad range of
acceptable and effective family
planning methods and services
(including natural family planning
methods, infertility services, and
services for adolescents)”); 42 C.F.R. §
59.5(a) (2017) (“Each project supported
under this part must . . . [p]rovide a
broad range of acceptable and
effective medically approved family
planning methods (including natural
family planning methods) and services
(including infertility services and
services for adolescents).”); 42 C.F.R. §
59.11 (2017) (requiring confidentiality in
Title X programs).
112
Wilder v. Bernstein, 645 F. Supp. 1292,
1307 (S.D.N.Y. 1986) (citing a settlement
stipulation requiring access to family
planning information, services, and
counseling in order to satisfy the Free
Exercise Clause concerns of children
placed in religious foster care
agencies), aff’d, 848 F.2d 1338 (2d Cir.
1988); Arneth v. Gross, 699 F. Supp.
450, 452 (S.D.N.Y. 1988) (“Minors have
a constitutional privacy right to
practice artificial contraception absent
compelling state considerations to the
contrary, and this is not diminished
because they are in foster care.”)
(footnote omitted).
113
Carey, 431 U.S. at 694-96.
114
Federal courts have held that state
statutes requiring parental consent for
family planning services provided to
otherwise eligible minors are
preempted by the federal Medicaid
statute, and that federal regulations
requiring parental notification for
similar services are preempted by Title
X of the Public Health Service Act. See,
e.g., Jones v. T.H., 425 U.S. 986 (1976),
aff’g mem. on statutory grounds, 425 F.
Supp. 873 (D. Utah. 1975) (state
statute); Planned Parenthood Ass’n of
Utah v. Dandoy, 810 F.2d 984 (10th Cir.
1987) (state statute); Jane Does 1-4 v.
State of Utah Dep’t of Health, 776 F.2d
253 (10th Cir. 1985) (state statute); New
York v. Heckler, 719 F.2d 1191, 1196−97
(2d Cir. 1983) (federal regulation);
Planned Parenthood Fed’n of Am. v.
Heckler, 712 F.2d 650 (D.C. Cir. 1983)
(federal regulation).
115
42 C.F.R. § 50.203 (2017) (barring
sterilization of anyone under 21 in
federally assisted family planning
projects); 18 N.Y.C.R.R. § 505.13(e)(1)(ii)
(2017) (same under New York
regulation).
116
New York City law defines the
sterilization patient as “a person,
twenty-one years of age or older, who is
legally capable of giving his or her
consent.” N.Y.C. Code § 17-402(2)
(2017). The applicable chapters on
sterilization apply to “every sterilization
preformed within the city of New York.”
N.Y.C. Code § 17-403 (2017).
117
See, e.g., Relf v. Mathews, 403 F. Supp.
1235, 1238 (D.D.C. 1975); Relf v.
Weinberger, 372 F. Supp. 1196, 1199
(D.D.C. 1974).
118
See James Trussell et al., Emergency
Contraception: A Last Chance to
Prevent Unintended Pregnancy, Office
of Population Research, Princeton
University (June 2017), http://
ec.princeton.edu/questions/ec-review.
pdf. In 2010, the FDA approved a type
of EC that is effective when taken
within 120 hours. See FDA Press
Release, FDA approves Ella tablets for
prescription emergency contraception
(August 13, 2010), https://wayback.
108 Teenagers, Health Care, and the Law
archive-it.org/7993/20170112215700/
http://www.fda.gov/NewsEvents/
Newsroom/PressAnnouncements/2010/
ucm222428.htm.
119
Am. Coll. of Obstetricians &
Gynecologists, Comm. on Health Care
for Underserved Women, ACOG Comm.
Op. No. 707, Access to Emergency
Contraception (July 2017) (recommend-
ing that doctors “[w]rite advance
prescriptions for emergency contracep-
tion . . . to increase awareness and
reduce barriers to immediate access”),
https://www.acog.org/Resources-And-
Publications/Committee-Opinions/
Committee-on-Health-Care-for-
Underserved-Women/
Access-to-Emergency-Contraception.
120
On April 5, 2013, a federal district court
ordered the FDA to lift age and
point-of-access restrictions on all
levonorgestrel-based emergency
contraception. Tummino v. Hamburg, 936
F. Supp 2d 162 (E.D.N.Y. 2013). The FDA
then removed point-of-access age
restrictions on emergency contraception
for minors of childbearing age. See FDA
Press Release, FDA Approves Plan B
One-Step Emergency Contraceptive for
Use Without a Prescription for All
Women of Child-Bearing Potential, (June
20, 2013), https://wayback.archive-it.
org/7993/20170112033121/http://www.
fda.gov/NewsEvents/Newsroom/
PressAnnouncements/ucm358082.htm.
The government website for New York
City erroneously suggests that minors
must be 15 years old to buy emergency
contraception at a drugstore. See NYC.
gov, Emergency Contraception for Teens,
http://www1.nyc.gov/nyc-resources/
service/1071/emergency-contracep-
tion-for-teens. As noted above, the FDA
has removed age restrictions for all
levonorgestrel-based emergency
contraception, and neither New York
City nor New York State requires minors
under the age of 15 to present a
prescription at a pharmacy.
121
18 N.Y.C.R.R. 505.3(b)(1)(i) (2017); N.Y.S.
Dep’t of Health, Office of Health
Insurance Programs, New York State
Medicaid Family Planning Services
Frequently Asked Questions, 11 (May
2015), https://www.emedny.org/
ProviderManuals/NYS_Medicaid_Family_
Planning_FAQs_May_2015.pdf.
122
See supra note 111.
123
Loretta Gavin et al., Providing Quality
Family Planning Services:
Recommendations of CDC and the U.S.
Office of Population Affairs, 63
Morbidity and Mortality Weekly Report
1-29 (April 25, 2014), http://www.cdc.
gov/mmwr/preview/mmwrhtml/rr6304a1.
htm.
124
N.Y. Pub Health Law § 2805-p (McKinney
2017).
125
See supra Section IV (Birth Control).
126
See supra Section IV (Birth Control).
127
See Ushma D. Upadhyay et al., Incidence
of Emergency Department Visits and
Complications after Abortion, 125
Obstetrics & Gynecology 175 (2015),
http://journals.lww.com/greenjournal/
Citation/2015/01000/Incidence_of_
Emergency_Department_Visits_and.29.
aspx.
128
Planned Parenthood v. Casey, 505 U.S.
833, 899-900 (1992); Hodgson v.
Minnesota, 497 U.S. 417, 461 (1990)
(O’Connor, J., concurring, in a controlling
opinion that states the narrowest ground
for upholding a two-parent notice
statute on the ground that its constitu-
tional infirmities were cured by the
judicial bypass); Bellotti v. Baird, 443
U.S. 622, 643-644 (1979) (plurality
opinion). In these cases, the United
States Supreme Court ruled that
parental consent requirements for
abortion are unconstitutional unless
they provide an expeditious and
confidential judicial bypass procedure.
109Teenagers, Health Care, and the Law
END NOTES
New York has made no provision for
such a bypass procedure. Therefore,
although no New York statute explicitly
allows minors to obtain an abortion
without parental consent, minors in
New York may do so based on federal
protections.
129
N.Y. Pub. Health Law § 17 (McKinney
2017) (“[R]ecords concerning the
treatment of an infant patient for
venereal disease or the performance of
an abortion operation upon such infant
patient shall not be released or in any
manner be made available to the parent
or guardian of such infant. . . .”). In fact,
anyone who unlawfully furnishes a
report relating to a woman’s referral for
or inquiry regarding abortion services,
or anyone who requests or obtains
such documents under false pretenses,
is guilty of a Class A misdemeanor and
subject to civil action. N.Y. Gen. Bus.
Law § 394-e (McKinney 2017).
130
Based on a national survey of 5,109
women seeking abortions, 476 of whom
were minors, 64 percent of minors
involved their mothers in their abortion
decision and 38 percent involved their
fathers. Lauren Ralph et al., The Role of
Parents and Partners in Minors’
Decisions to Have an Abortion and
Anticipated Coping After Abortion, 54
J. of Adolescent Health 428 (2014),
http://www.jahonline.org/article/
S1054-139X(13)00520-X/fulltext; see
also Lee A. Hasselbacher et al., Factors
Influencing Parental Involvement
Among Minors Seeking an Abortion: A
Qualitative Study, 104 Am. J. of Pub.
Health 2207 (2014) (“Factors that
influenced whether minors involved a
parent were classified into 4 main
categories: (1) relationships with
parents that were close or supportive,
(2) the sense that disclosure was
inevitable, (3) the need for financial or
logistical assistance, and (4) circum-
stances in which disclosure was forced
upon the minor.”), https://www.ncbi.
nlm.nih.gov/pmc/articles/
PMC4202942/.
131
See Hasselbacher et al., Factors
Influencing Parental Involvement
Among Minors Seeking an Abortion: A
Qualitative Study, supra, at 2209
(“Many minors were concerned that
informing a parent about the abortion
would damage their relationship. . . .
Minors with a troubled parent-daughter
relationship described concerns based
on fear of emotional or physical
repercussions and detached
relationships.”).
132
N.Y. Pub. Health Law § 2305(2)
(McKinney 2017) (“A licensed physician,
or in a hospital, a staff physician, may
diagnose, treat or prescribe for a
person under the age of twenty-one
years without the consent or knowl-
edge of the parents or guardian of said
person, where such person is infected
with a sexually transmitted disease, or
has been exposed to infection with a
sexually transmitted disease.”). The
comprehensive list of STIs covered by
this provision includes human
papilloma virus (HPV), a virus linked to
both cervical cancer and genital warts.
10 N.Y.C.R.R. § 23.1 (2017). The HPV
vaccine is approved for use in girls and
women ages 11 to 26 and is available
through the vaccines for children
program.
133
N.Y. Pub. Health Law § 17 (McKinney
2017) (“records concerning the
treatment of an infant patient for
venereal disease . . . shall not be
released or in any manner be made
available to the parent or guardian of
such infant”); 10 N.Y.C.R.R. § 23.4
(2017) (“When a health care provider
diagnoses, treats or prescribes for a
minor, without the consent or
knowledge of a parent or guardian as
permitted by section 2305 of the Public
Health Law, neither medical nor billing
records shall be released or in any
manner be made available to the parent
or guardian of such minor without the
minor patient’s permission.”); see also
45 C.F.R. § 164.502(g)(3)(i)(A), (ii)(B)
(2017).
110 Teenagers, Health Care, and the Law
134
10 N.Y.C.R.R. §§ 2.1, 2.10, 2.32 (2017).
135
Under 10 N.Y.C.R.R. § 2.10 (2017),
physicians must report the full name,
age, and address of every individual with
a suspected or confirmed case of a
communicable disease to the city,
county, or district health officer within
whose jurisdiction the individual resides,
along with the name of the suspected or
confirmed communicable disease, if
known; persons in charge of state health
or other specially licensed facilities must
make similar reports within the
jurisdiction where the institution or
facility is located.
136
10 N.Y.C.R.R. § 2.32 (2017).
137
Disclosure of confidential HIV-related
information is permitted in certain
limited circumstances, including, among
others, to: (1) certain health care
facilities or health care providers when
disclosure is necessary to provide
appropriate care to the patient or the
child of a patient; (2) government health
officers where disclosure is mandated by
federal or state law; (3) third-party
reimbursers or their agents to the extent
necessary to reimburse providers for
their services; (4) insurance institutions,
when authorized by the person with
authority to consent to health services;
(5) any person to whom disclosure is
ordered by court; (6) correctional
facilities and employees, under certain
circumstances; and (7) authorized
agencies in connection with foster care
or child adoption. N.Y. Pub. Health Law §
2782 (McKinney 2017). Generally, once
they have received the information, the
above-listed individuals and facilities
may not redisclose the information. It is
important to note that only physicians,
other health professionals, health
facilities, and social service workers are
prohibited from disclosing HIV-related
information. These laws do not apply to
those who obtain such information in
nonprofessional capacities (such as
friends, family members, landlords,
neighbors, etc.). Further, in New York,
there is no civil privacy remedy for
disclosure of confidential medical
information by persons not bound by
confidentiality laws, although there may
be federal civil claims against such
disclosures by government actors.
138
N.Y. Pub. Health Law § 2305(2)
(McKinney 2017) (authorizing physicians
to diagnose, prescribe, and treat minors
without parental involvement when the
minor “is infected with a sexually
transmitted disease, or has been
exposed to infection with a sexually
transmitted disease”); 10 N.Y.C.R.R. §
23.1 (2017) (including HIV in the list of
sexually transmitted diseases).
139
For information on PrEP, see https://
www.cdc.gov/hiv/risk/prep/index.html.
140
N.Y. Pub. Health Law § 2781 (McKinney
2017); 10 N.Y.C.R.R. § 63.3 (2017). Only in
very limited circumstances may an HIV
test be ordered without the individual’s
consent. For example, a person
convicted of or adjudicated delinquent
for certain sex offenses may be required
to submit to an HIV test so that the
victim may be informed of her or his
exposure, but the defendant may decline
to be informed of the results of the test.
N.Y. Pub. Health Law § 2785-a (McKinney
2017); N.Y. Crim. Proc. Law § 390.15
(McKinney 2017); N.Y. Family Court Act §
347.1 (McKinney 2017). In addition, a
litigant may be required to submit to an
HIV test when his or her HIV status is at
issue in the litigation. N.Y. C.P.L.R. §
3121(a) (McKinney 2017).
141
N.Y. Pub. Health Law § 2780(5)
(McKinney 2017) (“‘Capacity to consent’
means an individual’s ability, determined
without regard to the individual’s age, to
understand and appreciate the nature
and consequences of a proposed health
care service, treatment, or procedure, or
of a proposed disclosure of confidential
HIV related information, as the case may
be, and to make an informed decision
concerning the service, treatment,
111Teenagers, Health Care, and the Law
END NOTES
procedure or disclosure.”) (emphasis
added).
142
N.Y. Pub. Health Law § 2781-a
(McKinney 2017).
143
Pursuant to N.Y. Pub. Health Law §
2500-f (McKinney 2017) and 10
N.Y.C.R.R. §§ 69-1.1 to 69-1.9 (2017), the
New York State Department of Health
has implemented a screening program
to test newborns for HIV without
parental consent, and to disclose the
results to the mother. In addition, the
law allows anonymous HIV testing
without consent when: an accidental
needlestick or other event causes
potential occupational exposure to HIV;
the person who is the source of the
potential exposure is unable to provide
consent; no person authorized to
consent on behalf of the source is
immediately available; and the exposed
person will benefit by knowing the
source person’s HIV test results. N.Y.
Pub. Health Law § 2781(6)(e) (McKinney
2017); 10 N.Y.C.R.R. 63.3(c)(7) (2017).
144
Health care providers who are not
authorized by the commissioner to
provide HIV-related tests on an
anonymous basis must refer a person
who requests an anonymous test to a
site that does provide anonymous
testing. N.Y. Pub. Health Law § 2781(4)
(McKinney 2017).
145
N.Y. Pub. Health Law §§ 2780(7)
(McKinney 2017) (defining “confidential
HIV related information”), 2782
(prohibiting disclosure of confidential
HIV-related information except in
specified circumstances); 10 N.Y.C.R.R.
§ 63.6 (2017) (Department of Health
regulation ensuring confidentiality); 18
N.Y.C.R.R. § 360-8.1 (2017) (Department
of Social Services regulation ensuring
confidentiality in the Medicaid
program).
146
Such providers are subject to fines up
to $5,000 for each occurrence,
prosecution for a misdemeanor crime,
and charges of professional miscon-
duct. N.Y. Pub. Health Law § 2783
(McKinney 2017); 8 N.Y.C.R.R. § 29.1(b)
(8) (2017).
147
N.Y. Pub. Health Law § 2782(1)(a)
(McKinney 2017); 10 N.Y.C.R.R. § 63.6(a)
(1) (2017).
148
N.Y. Pub. Health Law § 2782(4)(e)
(McKinney 2017); 10 N.Y.C.R.R. § 63.6(g)
(2017).
149
N.Y. Pub. Health Law § 2782(4)(e)
(McKinney 2017); 10 N.Y.C.R.R. § 63.6(g)
(2017).
150
N.Y. Pub. Health Law § 2782(4)(e)
(McKinney 2017); 10 N.Y.C.R.R. § §
63.6(g)(2)(ii), 63.7(b) (2017).
151
N.Y. Pub. Health Law § 2782(1)(h)
(McKinney 2017) (requiring disclosure
to foster care and adoption agencies);
10 N.Y.C.R.R. § 63.6(a)(8) (2017) (same).
152
N.Y. Soc. Serv. Law § 373-a (McKinney
2017) (requiring foster care and
adoption agencies to disclose to
prospective foster or adoptive parents
the medical histories of the children
released to their care); N.Y. Soc. Serv.
Law § 372(8) (McKinney 2017) (requiring
same disclosure to relatives and others
who assume care of a child through
placements other than foster care or
adoption); see also 10 N.Y.C.R.R. §
63.6(h) (2017) (allowing redisclosure to
foster parents and prospective
adoptive parents).
153
N.Y. Pub. Health Law § 2782(1)(p)
(McKinney 2017); see also 10 N.Y.C.R.R.
§ 63.6(e) (2017).
154
10 N.Y.C.R.R. § 63.5(a) (2017).
155
N.Y. Pub. Health Law § 2783 (McKinney
2017).
112 Teenagers, Health Care, and the Law
156
N.Y. Pub. Health Law §§ 2782(1)(k), 2785
(McKinney 2017); 10 N.Y.C.R.R. § 63.6(a)
(12) (2017).
157
N.Y. Pub. Health Law § 2785 (McKinney
2017).
158
N.Y. Pub. Health Law § 2130(1) (McKinney
2017); 10 N.Y.C.R.R. § 63.4(a)(1) (2017).
159
N.Y. Pub. Health Law § 2130(1) (McKinney
2017); 10 N.Y.C.R.R. § 63.4(a)(4) (2017).
160
N.Y. Pub. Health Law § 2130(3)
(McKinney 2017) (defining “known”
contacts to include those known
independently to the physician or
revealed to the physician by the infected
person); 10 N.Y.C.R.R. § 63.4(b) (2017)
(same).
161
N.Y. Pub. Health Law § 2130(3)
(McKinney 2017); 10 N.Y.C.R.R. § 63.4(b)
(2017).
162
In fact, New York law calls only for public
health officials to seek the cooperation
of infected individuals. 10 N.Y.C.R.R. §
63.8(a)(3) (2017).
163
N.Y. Pub. Health Law § 2136(3)
(McKinney 2017).
164
10 N.Y.C.R.R. § 63.8(i) (2017).
165
10 N.Y.C.R.R. § 63.8(a)(3) (2017).
166
N.Y. Pub. Health Law § 2782(4)(b)
(McKinney 2017); 10 N.Y.C.R.R. § 63.8(a)
(3) (2017).
167
10 N.Y.C.R.R. § 63.8(a)(1) (2017); see also
N.Y.S. Dep’t of Health, Guidelines for
Integrating Domestic Violence Screening
into HIV Counseling, Testing, Referral &
Partner Notification, https://www.
health.ny.gov/diseases/aids/providers/
regulations/domesticviolence/guide.htm
(requiring domestic violence screening
during post-test counseling of
HIV-infected individuals).
168
N.Y.S. Dep’t of Health, Guidelines for
Integrating Domestic Violence Screening
into HIV Counseling, Testing, Referral &
Partner Notification, https://www.
health.ny.gov/diseases/aids/providers/
regulations/domesticviolence/guide.htm.
If notification is deferred because of the
risk of domestic violence, public health
staff follow up with the provider in
30-120 days to ascertain the current
status and to reinforce the importance of
reassessing domestic violence risk and
partner notification issues in subse-
quent contacts with the infected
individual to determine if partner
notification can occur. Id.
169
N.Y. Pub. Health Law § 2130(1) (McKinney
2017); 10 N.Y.C.R.R. § 63.4(a) (2017).
170
N.Y. Pub. Health Law § 2782(4)(a)
(McKinney 2017).
171
N.Y. Pub. Health Law § 2782(4)(a)
(McKinney 2017); 10 N.Y.C.R.R. § 63.8(a)
(1) (2017).
172
N.Y. Pub. Health Law § 2130(1), (3)
(McKinney 2017) (requiring contact
reporting upon a determination that the
patient is HIV-infected, an AIDS
diagnosis, diagnosis of an HIV-related
illness, or periodic monitoring of HIV
infection by laboratory tests); 10
N.Y.C.R.R. § 63.4(a)(1), (b) (2017) (same).
173
N.Y. Pub. Health Law § 2783(3)(a)
(McKinney 2017) (immunizing health care
providers against civil and criminal
liability for failure to disclose confiden-
tial HIV-related information to a contact
or to a person authorized to consent to
the patient’s health care).
174
N.Y. Pub. Health Law § 2504(3)
(McKinney 2017).
175
N.Y. Pub. Health Law § 2504(1)-(2)
(McKinney 2017).
176
See generally supra Section III.
113Teenagers, Health Care, and the Law
END NOTES
177
Id.
178
N.Y. Pub. Health Law § 2805-i
(McKinney 2017); 10 N.Y.C.R.R. §
405.9(c)(1) (2017). Additionally, New
York Public Health Law requires every
hospital providing emergency
treatment to a survivor of sexual
assault to provide prompt written and
oral information about emergency
contraception, and to provide
emergency contraception when
requested. N.Y. Pub Health Law §
2805-p (McKinney 2017).
Notwithstanding these statutes and
regulations, not all hospitals provide
emergency contraception as part of the
medical services associated with a
sexual assault. A patient who wants
emergency contraception should ask
specifically for this service if it is not
automatically offered. For information
about HIV prophylaxis after a sexual
assault, see https://www.cdc.gov/hiv/
basics/pep.html.
179
N.Y. Pub. Health Law § 2805-i(1)(b), (3)
(McKinney 2017); 10 N.Y.C.R.R. §
405.9(c) (2017).
180
10 N.Y.C.R.R. § 405.9(c) (2017).
181
N.Y. Pub. Health Law § 2805-i
(McKinney 2017); 10 N.Y.C.R.R. §
405.9(c)(2)(ii) (2017) (defining sexual
assault evidence to include, “as
appropriate to the injuries sustained in
each case, slides, cotton swabs,
clothing or portion thereof, hair
combings, fingernail scrapings,
photographs, and other items specified
by the local police agency and forensic
laboratory in each particular case”).
Survivors should note that not all
hospitals are equipped with “rape kits”
and should therefore inquire as to their
availability before going to the hospital,
if possible.
182
Minors may consent to pregnancy
testing and counseling, administration
of emergency contraception, STI
diagnosis and treatment, and HIV
testing and treatment. See generally
supra Section IV.
183
N.Y. C.P.L.R. 4510(a)(3) (McKinney 2017)
(defining the rape crisis client, without
regard to age, as “any person who is
seeking or receiving the services of a
rape crisis counselor for the purpose of
securing counseling or assistance
concerning any sexual offenses”)
(emphasis added); id. 4510(c) (providing
that only the rape crisis client may
waive the privilege, permitting the
counselor to disclose information,
unless the client has been “adjudicated
incompetent,” in which case a personal
representative may waive the privilege).
184
When a sexual assault victim is
admitted to a hospital, the hospital
must seek “patient consent, or consent
of the person authorized to act on the
patient’s behalf, for collection and
storage of the sexual offense
evidence.” 10 N.Y.C.R.R. § 405.9(c)(2)
(vi) (2017). The New York State
Department of Health “retains its
longstanding position [that] [a] mature
minor who presents at a hospital
emergency department may consent or
may choose not to consent, without
parental involvement, to a forensic
exam, in the course of post-sexual
assault care.” Email from Lauren J.
Tobias, Director, Division of Family
Health, N.Y.S. Dep’t of Health, to
Katharine Bodde, Policy Counsel,
NYCLU (Oct. 24, 2017, 3:17 p.m. EDT)
(on file with the NYCLU).
The Public Health Law makes hospitals
responsible for collecting and
maintaining evidence of sexual
offenses, N.Y. Pub. Health Law §
2805-i(1)(a), (2) (McKinney 2017), and
entitles the “alleged sexual offense
victim” to control whether the hospital
releases “privileged evidence” to the
police, id. § 2805-i(2). Privileged
evidence is evidence collected or
obtained from the patient during the
hospital’s examination and treatment
of injuries sustained as a result of a
114 Teenagers, Health Care, and the Law
sexual offense. 10 N.Y.C.R.R. § 405.9(c)
(2)(iv) (2017). Nonprivileged evidence is
evidence obtained from suspected child
abuse victims or evidence derived from
other crimes that must be reported (e.g.,
injuries arising from or caused by the
discharge of a gun or firearm, burn
injuries, or life-threatening wounds
inflicted by a knife or other sharp
instrument). Id. § 405.9(c)(2)(v) (2017).
Hospitals must turn nonprivileged
evidence over to the police on their
request without regard to the consent of
the alleged victim. N.Y. Pub. Health Law §
2805-i(2)(a) (McKinney 2017); 10
N.Y.C.R.R. § 405.9(c)(2)(vi)(c).
185
Because the minor is entitled to consent
independently to reproductive health
services (e.g., STI testing and treatment,
HIV testing and treatment, and
emergency contraception, see generally
supra Section IV), an inference may be
drawn that would allow the minor also to
consent to the treatment of injuries
related to the assault; otherwise, the
minor’s right to confidential reproductive
health care would be vitiated.
Additionally, if related injuries require
immediate medical attention, a health
care provider can generally treat a minor
without parental consent. N.Y. Pub.
Health Law § 2504 (McKinney 2017).
186
If Susan consents under pressure from
her mother, the emergency room
providers still should decline to perform
the examination if they determine that
the consent was the result of force or
coercion. Forced consent is not valid
consent.
187
N.Y. Soc. Serv. Law § 413 (McKinney
2017); 10 N.Y.C.R.R. § 405.9(d) (2017).
Such reports must be made to the State
Central Register of Child Abuse and
Maltreatment, not to the police.
188
N.Y. Penal Law § 265.25 (McKinney 2017)
(requiring reports of such wounds to be
made to the police); 10 N.Y.C.R.R. §
405.9(c)(2)(v), (vi(c)) (2017) (requiring
hospitals to turn evidence of such crimes
over to the police if police request it
within 30 days of its collection).
189
N.Y. C.P.L.R. §§ 4504(b), 4508(a)(3)
(McKinney 2017).
190
See infra notes 201-215 and accompanying
text.
191
See supra notes 134−137, 158−159 and
accompanying text.
192
N.Y. Mental Hyg. Law § 33.21(a)(3)
(McKinney 2017). For the purposes of
independent consent by a minor,
outpatient services are defined to
exclude surgery, shock treatment, major
medical treatment in the nature of
surgery, or the use of experimental drugs
or procedures, N.Y. Mental Hyg. Law §
33.03(b)(4) (McKinney 2017). “Outpatient
program[s] licensed or operated
pursuant to the regulations of the
commissioner of mental health” refer to
programs licensed pursuant to the
approval process outlined by 14
N.Y.C.R.R. § 551 (2017) and the
certification process outlined by 14
N.Y.C.R.R. § 587.5 (2017). Such programs
include: assertive community treatment
(ACT) programs operated pursuant to 14
N.Y.C.R.R. § 508.3 (2017); clinics
operated pursuant to 14 N.Y.C.R.R. §§
587.8 and 587.9 (2017); comprehensive
psychiatric emergency programs (CPEPs)
operated pursuant to 14 N.Y.C.R.R. § 590
(2017); continuing day treatment
programs operated pursuant to 14
N.Y.C.R.R. § 587.10 (2017); day treatment
programs serving children operated
pursuant to 14 N.Y.C.R.R. § 587.11 (2017);
intensive psychiatric rehabilitation
treatment programs operated pursuant
to 14 N.Y.C.R.R. § 587.13 (2017); partial
hospitalization programs operated
pursuant to 14 N.Y.C.R.R. § 587.12 (2017);
and personalized recovery oriented
services (PROS) operated pursuant to 14
N.Y.C.R.R. § 512 (2017). For further
reading on the services provided by
these licensed outpatient programs, see
https://www.omh.ny.gov/omhweb/
licensing/definitions.htm.
115Teenagers, Health Care, and the Law
END NOTES
193
N.Y. Mental Hyg. Law § 33.21(c)
(McKinney 2017). Where parents have
refused to consent and a physician
determines that the minor should
receive treatment anyway, the
physician must notify the parents of
this decision, but only if clinically
appropriate. Id.
194
N.Y. Mental Hyg. Law § 33.21(e)(2)
(McKinney 2017).
195
N.Y. Mental Hyg. Law § 33.21(b)
(McKinney 2017).
196
N.Y. Mental Hyg. Law § 33.21(d)
(McKinney 2017).
197
Such documentation must include a
written statement signed by the minor
indicating that the minor is voluntarily
seeking services. N.Y. Mental Hyg. Law
§ 33.21(c) (McKinney 2017).
198
N.Y. Mental Hyg. Law § 9.13(a)
(McKinney 2017). Parental consent is
generally necessary for the nonemer-
gency administration of psychotropic
medications to minors in inpatient
mental health facilities. N.Y. Mental
Hyg. Law § 33.21(e)(1) (McKinney 2017).
However, a 16- or 17-year-old who
provides informed consent can receive
medication without parental consent
where medication is in the minor’s best
interests if: (1) a parent or guardian is
not reasonably available, or (2)
requiring parental involvement would
have a detrimental effect on the minor,
or (3) the parent or guardian has
refused to consent. N.Y. Mental Hyg.
Law § 33.21(e)(2) (McKinney 2017). In
the second and third situations,
confirmation by a second, independent
psychiatrist is required. Id.
199
N.Y. Mental Hyg. Law § 9.07(a)
(McKinney 2017).
200
N.Y. Mental Hyg. Law § 9.09 (McKinney
2017).
201
N.Y. Mental Hyg. Law § 9.13(b)
(McKinney 2017) (allowing the
involuntary commitment of an
individual who is “mentally ill and in
need of retention for involuntary care
or treatment”); N.Y. Mental Hyg. Law §
9.01 (McKinney 2017) (“‘[I]n need of
involuntary care and treatment’ means
that a person has a mental illness for
which care and treatment as a patient
in a hospital is essential to such
person’s welfare and whose judgment
is so impaired that he is unable to
understand the need for such care and
treatment.”). Under constitutional law,
however, the standard for involuntary
commitment is actually more stringent.
As a matter of substantive due process,
a person cannot be committed
involuntarily unless the patient
presents a real and present danger to
himself or others. See, e.g., O’Connor v.
Donaldson, 422 U.S. 563, 576 (1975)
(“[A] State cannot constitutionally
confine without more a [mentally ill]
nondangerous individual who is
capable of surviving safely in freedom
by himself or with the help of willing
and responsible family members or
friends.”); Rodriguez v. City of N.Y., 72
F.3d 1051, 1061 (2d Cir. 1995) (“[D]ue
process does not permit the involun-
tary hospitalization of a person who is
not a danger either to herself or to
others.”).
202
N.Y. Mental Hyg. Law § 9.13 (b)
(McKinney 2017).
203
See, e.g., Rodriguez, 72 F.3d at 1061.
204
N.Y. Pub. Health Law § 2504(4)
(McKinney 2017).
205
N.Y. Mental Hyg. Law § 33.13(c), (e), (f)
(McKinney 2017) (protecting confidenti-
ality of mental health records); see also
id. § 33.14 (permitting patients to move
to seal mental health records). When a
minor acts on his or her own behalf to
consent to mental health treatment,
the minor will control the information
related to that treatment. Id. § 33.16(b)
116 Teenagers, Health Care, and the Law
(3) (granting parents and guardians
access to their minor children’s mental
health records “concerning care and
treatment for the infant for which the
consent of a parent or guardian was
obtained or has been requested”)
(emphasis added); see also generally, 45
C.F.R. § 164.502(g)(3)(i)(A) (2017) (giving
minors the right to control information
related to health services to which they
have given independent, legal consent).
206
The confidentiality provisions apply to
any facility “licensed or operated by the
office of mental health or the office for
people with developmental disabilities,
hereinafter referred to as the offices.”
N.Y. Mental Hyg. Law § 33.13(a), (c)
(McKinney 2017). But these provisions
also apply to any facility “in which
services for the mentally disabled are
provided,” including but not limited to “a
psychiatric center, developmental
center, institute, clinic, ward, institution,
or building,” N.Y. Mental Hyg. Law §
1.03(6) (McKinney 2017), and “any
provider of services for individuals with
mental illness or developmental
disabilities which is operated by, under
contract with, receives funding from, or
is otherwise approved to render services
by, a director of community services
pursuant to article forty-one of this
chapter or one or both of the offices,
including any such provider which is
exempt from the requirement for an
operating certificate under article
sixteen or article thirty-one of this
chapter,” N.Y. Mental Hyg. Law § 33.13(a),
(e) (McKinney 2017).
207
N.Y. Mental Hyg. Law § 33.16(c)(2)
(McKinney 2017).
208
N.Y. Mental Hyg. Law § 33.16(b)(3)
(McKinney 2017).
209
See, e.g., Am. Psychiatric Ass’n, Ethics
Primer of the American Psychiatric
Association, 16-17 (2001); see also Am.
Psychological Ass’n, Ethical Principles
of Psychologists and Code of Conduct,
Ethical Standards 4.01, 4.04, 4.05
(effective date Jan. 1, 2017), http://www.
apa.org/ethics/code/ethics-code-2017.
pdf.
210
N.Y. Mental Hyg. Law § 33.13(c), (d)
(McKinney 2017).
211
N.Y. Mental Hyg. Law §§ 33.23, 33.25
(McKinney 2017). This reporting rule
applies to a wide range of facilities,
including psychiatric centers, develop-
mental centers, institutes, clinics, or
wards that provide services for patients
with mental disabilities. Id. § 1.03(6)
(McKinney 2017).
212
See 14 N.Y.C.R.R. § 624.1 (2017) for a
description of the covered facilities.
213
See N.Y. Mental Hyg. Law §§ 16.13(b),
13.21(b) (McKinney 2017) (requiring
investigation and reporting of reportable
incidents to Vulnerable Persons’ Central
Register); 14 N.Y.C.R.R. §§ 624.3 (2017)
(defining reportable incidents); 624.4
(defining notable occurrences); 624.5
(requiring reporting of reportable
incidents and serious notable occur-
rences to oversight agencies and
Vulnerable Persons’ Central Register,
among others); 624.6(f) (requiring notice
of all reportable incidents and notable
occurrences to parents). Parents are also
allowed to request and receive records
from such facilities. Id. § 624.8(b).
214
N.Y. Mental Hyg. Law §§ 16.13(b), 13.21(b)
(McKinney 2017).
215
N.Y. Mental Hyg. Law §§ 7.21(b) (requiring
reporting of reportable incidents to
Vulnerable Persons’ Central Register,
which must in turn forward allegations of
crimes to law enforcement), 31.11
(requiring reporting of crimes against
patients, including unauthorized sexual
contact, to law enforcement) (McKinney
2017); 14 N.Y.C.R.R. §§ 524.5 (defining
reportable incidents), 524.8(a)(1)
(requiring reports of reportable incidents
to Vulnerable Persons’ Central Register),
524.12 (requiring reports to next of kin
117Teenagers, Health Care, and the Law
END NOTES
and qualified persons, including
parents of minor patients) (2017).
216
N.Y. Mental Hyg. Law § 1.03 (McKinney
2017) (defining “chemical dependence”
as “the repeated use of alcohol and/or
one or more substances to the extent
that there is evidence of physical or
psychological reliance on alcohol and/
or substances, the existence of
physical withdrawal symptoms from
alcohol and/or one or more substances,
a pattern of compulsive use, and
impairment of normal development or
functioning due to such use in one or
more of the major life areas including
but not limited to the social, emotional,
familial, educational, vocational, and
physical. Unless otherwise provided,
for the purposes of this chapter, the
term ‘chemical dependence’ shall mean
and include alcoholism and/or
substance dependence.”).
217
N.Y. Mental Hyg. Law § 22.11(b)
(McKinney 2017).
218
N.Y. Mental Hyg. Law § 22.11(c)(1)
(McKinney 2017) (requiring that the
admitting physician fully document in
the minor’s medical record the reasons
that parental involvement was not
required for the treatment of such
minor in the particular situation).
219
N.Y. Mental Hyg. Law § 22.11(c)(2)
(McKinney 2017) (requiring that the
program director fully document in the
minor’s medical record the reasons
that parental involvement was not
required for the treatment of such
minor in the particular situation).
220
Id.
221
N.Y. Mental Hyg. Law § 22.11(a)
(McKinney 2017).
222
N.Y. Mental Hyg. Law § 22.11(d)(1)(ii)
(McKinney 2017).
223
N.Y. Mental Hyg. Law § 22.11(d)(1)(iv)(B)
(McKinney 2017).
224
N.Y. Mental Hyg. Law § 22.11(d)(1)(iv)(C)
(McKinney 2017).
225
42 U.S.C. § 290dd-2(a) (2017) (“Records
of the identity, diagnosis, prognosis, or
treatment of any patient which are
maintained in connection with the
performance of any program or activity
relating to substance abuse education,
prevention, training, treatment,
rehabilitation, or research, which is
conducted, regulated, or directly or
indirectly assisted by any department
or agency of the United States shall . . .
be confidential . . . .”).
226
42 U.S.C. § 290dd-2(b) (2017).
227
42 C.F.R. § 2.14(a) (2017).
228
42. C.F.R. § 2.14(b)(1).
229
42. C.F.R. § 2.14(b)(2), (c).
230
42 C.F.R. § 2.64 (2017) (detailing the
procedure and the substantive showing
necessary to attain a court-ordered
disclosure).
231
42 U.S.C. § 290dd-2(c) (2017).
232
Comm’r Soc. Servs. v. David R.S., 451
N.Y.S.2d 1, 4 (Ct. App. 1982) (“Broad
interpretation furthers the objectives of
the Federal statute addressing drug
and alcohol abuse prevention,
treatment and rehabilitation by not
chilling the willingness or discouraging
the readiness of individuals to come to
facilities operated under the statute.”).
233
42 C.F.R. § 2.14(a) (2017) (allowing a
minor patient who has the legal
capacity to consent to treatment to
direct disclosure of information); id. §
2.14(b) (prohibiting communication with
parents about a minor’s application for
substance abuse services, unless the
minor consents or lacks the capacity
118 Teenagers, Health Care, and the Law
for rational decision-making regarding
such consent).
234
See generally N.Y. Mental Hyg. Law §
22.05(b) (McKinney 2017) (“All records of
identity, diagnosis, prognosis, or
treatment in connection with a person’s
receipt of chemical dependence services
shall be confidential and shall be
released only in accordance with
applicable provisions of the public
health law, any other state law, federal
law and duly executed court orders.”).
235
N.Y. Pub. Health Law § 2504(4)
(McKinney 2017).
236
Sullivan v. Montgomery, 279 N.Y.S. 575,
577 (City Ct. 1935).
237
N.Y. Pub. Health Law § 18(2)(c) (McKinney
2017).
238
Id.
239
N.Y. Pub. Health Law § 18(3)(c) (McKinney
2017).
240
See supra Section IV (Mental Health
Counseling and Services).
241
See generally supra Section III.
242
N.Y. Human Rights Rules, § 466.13(b)(1)
(McKinney 2017) (Book 18 App.).
243
Id., § 466.13(c).
244
Id., § 466.13(b)(3), (d); see also Doe v.
Bell, 754 N.Y.S.2d 846, 851, 853 (Sup. Ct.
2003) (holding that gender identity
disorder is a disability under New York’s
Human Rights Law such that a trans
17-year-old in foster care could not be
forbidden to wear female clothing).
245
18 N.Y.C.R.R. § 505.2(l)(2)(i) (2017) (A
minor trans patient seeking hormone
therapy must: (1) meet the criteria for a
diagnosis of gender dysphoria; (2) have
reached puberty, with a resulting
increase in gender dysphoria; (3) have no
complicating psychiatric condition; (4)
have adequate psychological and social
support during treatment; and (5)
demonstrate understanding of the risks
and benefits of hormone therapy and sex
reassignment.).
246
Id. § 505.2(l)(2)(ii).
247
Id. § 505.2(l)(3)(i), (ii).
248
N.Y.C. Admin. for Children’s Servs.,
Policy and Procedure 2014/xx,
Non-Medicaid Reimbursable Treatments
and Services for Children in the Custody
of the Administration for Children’s
Services 4 & n. 3 (Dec. 16, 2014), https://
www1.nyc.gov/assets/acs/pdf/
lgbtq/14_12_16_NMR_signed_interim_
policy.pdf. A supplemental policy further
clarifies that trans-related care includes
“supportive psychotherapy, hormonal
therapies, surgical procedures, voice
therapy, and electrolysis or laser hair
removal that trans people seek in
relation to their gender.” Memorandum
from Benita Miller, N.Y.C. Admin. for
Children’s Servs., to ACS and Provider
Agency Staff, NMR [Non-Medicaid
Reimbursable Treatment] Guidance for
Trans-Related Healthcare 1 n.1 (Jan. 29,
2013), https://www1.nyc.gov/assets/acs/
pdf/lgbtq/acs_NMR_Trans-Related_
Healthcare.pdf.
249
N.Y.S. Office of Children and Family
Servs., A Medical Guide for Youth in
Foster Care 2-4 (Aug. 2011) (describing
the general practice of asking parents to
delegate the consent function to the
foster care agency but noting circum-
stances in which minors may consent on
their own), http://ocfs.ny.gov/main/
publications/Pub5116SINGLE.pdf; N.Y.C.
Admin. for Children’s Servs., Policy and
Procedure 2014/08, Medical Consents
for Children in Foster Care 4-6 (Sept. 16,
2014) (noting the general rule that
parental or agency consent is required
but outlining circumstances in which a
minor can consent independently),
http://www1.nyc.gov/assets/acs/pdf/
policy_library_search/2014/E.pdf.
119Teenagers, Health Care, and the Law
END NOTES
250
N.Y.C. Admin. for Children’s Servs.,
Policy and Procedure 2014/08, Medical
Consents for Children in Foster Care 4
(Sept. 16, 2014), http://www1.nyc.gov/
assets/acs/pdf/policy_library_
search/2014/E.pdf.
251
Id. at 6.
252
The disclosable medical history
includes information setting forth
conditions or diseases believed to be
hereditary, any drugs or medication
taken during pregnancy by the child’s
birth mother, and any other medical
information, including psychological
information, that may influence the
child’s current or future health. N.Y.
Soc. Serv. Law § 373-a (McKinney
2017); N.Y. Soc. Serv. Law § 372(8)
(McKinney 2017) (requiring disclosure
to relatives and others who assume
care of a child through placements
other than foster care or adoption).
253
N.Y. Pub. Health Law § 2782(1)(h)
(McKinney 2017) (“No person who
obtains confidential HIV related
information in the course of providing
any health or social service or pursuant
to a release of confidential HIV related
information may disclose or be
compelled to disclose such informa-
tion, except to the following: . . . an
authorized agency in connection with
foster care or adoption of a child.”).
254
N.Y. Soc. Serv. Law § 373-a (McKinney
2017); N.Y. Soc. Serv. Law § 372(8)
(McKinney 2017).
255
N.Y. Pub. Health Law §§ 2781(2)(d), (4)
(McKinney 2017).
256
18 N.Y.C.R.R. § 441.22(a) (2017)
(requiring foster care agencies to
provide comprehensive medical and
health services for every foster child in
their care); 18 N.Y.C.R.R. § 507.1(a)
(2017).
257
18 N.Y.C.R.R. 463.1 (2017) (“Each local
social services department shall offer
and provide promptly upon request . . .
social, education and medical
family-planning services to persons of
child-bearing age, including minors
who can be considered sexually active,
who are applicants for or recipients of
public-assistance, recipients of
medical assistance only, or recipients
of supplemental security income.”); 18
N.Y.C.R.R. § 507.1(c)(9) (2017) (requiring
social services districts to provide or
arrange for family planning services for
foster children within 30 days of a
request); 18 N.Y.C.R.R. § 463.2(b)(2)
(2017) (same for child care agencies).
258
18 N.Y.C.R.R. § 505.2(l)(2) (2017).
259
See supra note 248.
260
Memorandum from Benita Miller, N.Y.C.
Admin. for Children’s Servs., to ACS
and Provider Agency Staff, NMR
[Non-Medicaid Reimbursable
Treatment] Guidance for Trans-Related
Healthcare 1 (Jan. 29, 2013) (“[T]he
foster care agency must comply with all
existing medical consent requirements.
. . .”), https://www1.nyc.gov/assets/acs/
pdf/lgbtq/acs_NMR_Trans-Related_
Healthcare.pdf. For the general
consent requirements, see N.Y.S.
Office of Children and Family Servs., A
Medical Guide for Youth in Foster Care
2-4 (Aug. 2011), http://ocfs.ny.gov/
main/publications/Pub5116SINGLE.pdf;
N.Y.C. Admin. for Children’s Servs.,
Policy and Procedure 2014/08, Medical
Consents for Children in Foster Care
4-6, http://www1.nyc.gov/assets/acs/
pdf/policy_library_search/2014/E.pdf.
261
For specific information on income and
immigration eligibility requirements, as
well as details concerning how a young
person enrolls in one of these
programs, please consult a teen
advocacy organization, such as The
Door, or call one of the phone numbers
included in this section.
120 Teenagers, Health Care, and the Law
262
Children’s Aid Society, Public Benefits
for Minors and Emancipated Youth
(undated) (on file with the NYCLU).
263
Id.
264
Id.
265
Id.
266
Id.
267
Id.
268
This income level ($35,524 per year for a
family of two) constitutes 223% of the
federal poverty level, which is the current
eligibility threshold for pregnant women
and infants under age one. N.Y.S. Dep’t
of Health, Medicaid (Annual and Monthly)
Income Levels for Pregnant Women and
Children (March 2015), https://www.
health.ny.gov/community/pregnancy/
health_care/prenatal/income.htm; N.Y.
Social Servs. Law § 366(1)(a)(3)
(McKinney 2017) (defining “family size”
in the case of a pregnant woman to
include “herself plus the number of
children she is expected to deliver”).
269
N.Y.S. Dep’t of Health, Medicaid Prenatal
Care Standards (Oct. 2016), https://
www.health.ny.gov/health_care/medicaid/
standards/prenatal_care/; N.Y. Soc. Serv.
Law § 366(1)(d)(3) (McKinney 2017)
(providing that pregnant women are
covered “during pregnancy and during
the sixty-day period beginning on the
last day of pregnancy”).
270
N.Y. Soc. Serv. Law § 366-g (McKinney
2017); 18 N.Y.C.R.R. § 360-3.3(c)(6) (2017).
271
N.Y.S. Dep’t of Health, Medicaid (Annual
and Monthly) Income Levels for Pregnant
Women and Children (March 2015),
https://www.health.ny.gov/community/
pregnancy/health_care/prenatal/
income.htm.
272
42 U.S.C. § 1396a(e)(4) (2017); 42 C.F.R. §
435.117 (2017); N.Y. Soc. Serv. Law §
366-g(4)(a) (McKinney 2017) (“A child
under the age of one year whose mother
is receiving medical assistance, or
whose mother was receiving medical
assistance on the date of the child’s
birth . . . shall be deemed to be enrolled
in the medical assistance program
regardless of the issuance of a medical
assistance identification card or client
identification number to such child or
other proof of the child’s eligibility.”).
273
N.Y. Soc. Serv. Law § 365-a(6) (McKinney
2017) (providing coverage for pregnant
women to the extent that federal
financial participation is available,
except that coverage will not lapse
“solely by reason of the immigration
status of the otherwise eligible pregnant
woman”); N.Y.C. Human Res. Admin.,
Dep’t of Soc. Servs., Guide to Health
Insurance and Health Care Services for
Immigrants in New York City 1 (2016)
(table titled “Comprehensive Health
Insurance Coverage” states, “All
pregnant women, including undocu-
mented women” are eligible for Medicaid
coverage), http://www1.nyc.gov/assets/
ochia/downloads/pdf/guide-to-health-
insurance-for-immigrants.pdf; Kaiser
Comm’n on Key Facts, Medicaid and the
Uninsured (July 2009) (Table 2 lists
New York among the states that offer
state coverage for all documented and
most undocumented immigrants for
pregnancy-related care), https://
kaiserfamilyfoundation.files.wordpress.
com/2013/01/7933.pdf.
274
N.Y. Soc. Serv. Law § 366-g (McKinney
2017); 18 N.Y.C.R.R. § 360-3.3(c)(6) (2017).
275
N.Y.S. State Dep’t of Health, Comprehensive
Family Planning and Reproductive Health
Care Services Program, Family Planning
Extension Program, https://www.health.
ny.gov/community/pregnancy/family_
plan-ning/; N.Y.C. Human Res. Admin.,
Family Planning Extension Program,
https://www1.nyc.gov/site/ochia/
coverage-care/family-planning-exten-
sion-program.page.
121Teenagers, Health Care, and the Law
END NOTES
276
Federal law provides that a state
Medicaid plan must “provide safeguards
which restrict the use or disclosure of
information concerning applicants and
recipients to purposes directly connected
with the administration of the plan.” 42
U.S.C. § 1396a(a)(7) (2017); see also 42
C.F.R. § 431.305 (2017) (requiring state
Medicaid agencies to safeguard
information about “medical services
provided,” among other things); 42
C.F.R. 431.306 (2017) (restricting state
Medicaid agencies’ release of information
and requiring consent of the “family or
individual, whenever possible” before
release to a third party). New York law
implements these federal mandates.
See N.Y. Soc. Serv. Law § 367-b(4)
(McKinney 2017) (“Information relating
to persons applying for or receiving
medical assistance shall be considered
confidential and shall not be disclosed
to persons or agencies other than those
considered entitled to such information
in accordance with [N.Y. Soc. Serv. Law
§ 136 (McKinney 2017) (protecting public
welfare records and specifying grounds
for disclosure)] when such disclosure is
necessary for the proper administration
of public assistance programs.”).
277
11 N.Y.C.R.R. §§ 244.2, 244.3 (2017)
(requiring insurers under Medicaid,
Child Health Plus, and other programs
to develop confidentiality protocols to
accommodate reasonable requests
from covered individuals to contact
them through alternative means or at
alternative locations and forbidding
insurers from disclosing information
about a requestor’s location or health
services to the policyholder).
278
N.Y.S. Dep’t of Health, Opt-Out Process
Frequently Asked Questions (FAQs):
New York’s Delivery System Reform
Incentive Payment (DSRIP) Program 7
(Aug. 2016), https://www.health.ny.gov/
health_care/medicaid/redesign/dsrip/
docs/opt_out_process_faqs.pdf. While
this publication pertains to the Delivery
System Reform Incentive Payment
Program within Medicaid, this program
is in fact comprehensive, covering New
York State’s six million Medicaid
enrollees. Id. at 3.
279
Id. at 7.
280
Id.
281
N.Y. Pub. Health Law §§ 2510-2511
(McKinney 2017).
282
See N.Y. Pub. Health Law § 2510(7), (11)
(McKinney 2017) (defining the scope of
covered services).
283
N.Y. Pub. Health Law § 2511(2)(a)(iii)
(McKinney 2017) (defining income
eligibility levels for CHP as up to 400
percent of the federal poverty level);
N.Y.S. Dep’t of Health, Child Health
Plus, Eligibility and Cost (May 2016)
(showing monthly income-eligibility
levels by family size and what
premiums apply at what income levels).
284
N.Y.C. Human Res. Admin., Guide to Health
Insurance and Health Care Services for
Immigrants in New York City 1 (2016)
(stating that Child Health Plus is available
to “[a]ll children under 19, including
undocumented children”), https://
www1.nyc.gov/assets/ochia/downloads/
pdf/guide-to-health-insurance-for-im-
migrants.pdf; N.Y. Immigration Coalition,
Welcome to Health Care!/¡Bienvenidos
al Cuidado! 4 (2017) (same), http://
welcometocup.org/file_columns/
0000/0822/cup-welcome_to_health-
care-mpp_pages.pdf.
285
Telephone interviews with Child Health
Plus Helpline (800-698-4KIDS
(1-800-698-4543)) and N.Y. State of
Health Marketplace (1-855-355-5777)
(July 7, 2017).
286
See supra Section VI (Medicaid).
287
N.Y. Pub. Health Law § 4903(2)(a)
(McKinney 2017).
288
See supra note 277.
122 Teenagers, Health Care, and the Law
123Teenagers, Health Care, and the Law
NOTES
New York Civil Liberties Union
125 Broad St., 19th Floor
New York, NY 10004
(212) 607-3300 I www.nyclu.org
