Commonly Asked Questions

Through its extensive work with school-based and school-linked health centers (SBHC/SLHCs), Advocates for Youth knows that legal issues greatly concern planners and administrators. Some of the commonly asked questions include:

• When may adolescents consent to their own treatment?
• When do parents have the right to see their children's records?
• When must SBHC/SLHCs notify parents about services provided?
• If a legal problem arises from operating the health center, who may be liable?
• What restrictions are imposed by various funding statutes and which supersedes another if a conflict arises?

The answers to these questions are not simple. The laws governing SBHC/SLHC practice are a patchwork of federal, state, and local statutes, regulations, court decisions, constitutional provisions, and restrictions imposed by the clinics' funders. Within this complex framework, each SBHC/SLHC must address the particularly sensitive issues of consent, confidentiality, liability, and funding.

This document is not, nor is it intended as, a substitute for consulting with an attorney licensed to practice in the state where the SBHC/SLHC is located. Instead, this is an introduction for staff, advocates, and others to the legal issues facing SBHC/SLHCs, with examples and discussion intended for non-lawyers. Once SBHC/SLHC staff and advocates are familiar with the legal framework, they will be better prepared to consult with local attorneys and officials.

Consent

Consent, in legal parlance, refers to permission for care given by a patient or a patient's representative. In general, the law places the authority for health care decisions with the patient in order to protect each individual's autonomy and control over his or her own body. A health care provider must obtain the patient's informed consent before performing a test, operation, procedure, or treatment. A general definition of informed consent is consent given knowingly (the patient understands the risks of and alternatives to a treatment), competently (the patient is mentally able to give consent—the patient is not too young or mentally incapacitated to understand), and voluntarily (the patient is under no coercion to give consent).

The legal standard for informed consent is whether the physician has given the amount of information a patient has a right to expect prior to making an informed choice about the proposed procedure or treatment and whether the patient has made a voluntary choice among the alternatives. The law, therefore, imposes upon the physician a duty to warn the patient of risks and possible outcomes. Any health care provider must determine, according to local law, what procedures require a patient's informed consent.

For the health care of a minor (usually defined by the state as a person under 18 years of age), the law generally requires parental consent or alternative authorization, such as a court order. A number of rationales support this legal rule. Minors are generally thought to lack the capacity to make their own medical decisions and to need protection from making mistakes. The law, therefore, authorizes parents to give consent, considering them to possess the intelligence, maturity, and experience needed to make important decisions and to have the same interests as the minor in the young person's health. There are, however, numerous legal exceptions that permit minors to consent to their own care.

Exceptions Based on a Minor's Status

The law now recognizes that minors are often competent to understand the implications of medical decisions. The evolution of law results in a number of important alternatives and exceptions to the requirement of parental consent for medical treatment. Some states, based on statutes and court decisions, specifically permit minors in several situations to give consent to their own medical care.

• Emancipated minors—married, serving in the armed forces, or living apart from their parents and managing their own finances;
• Mature minors—sufficiently intelligent and mature to appreciate the benefits and risks of any proposed treatment;
• Married minors;
• Minor parents;
• Pregnant minors;
• Minors serving in the military;
• Minors living apart from their parents, including runaway and homeless youth;
• High school graduates;
• Minors of an age specified by law.

Exceptions for Specific Health Services

The remaining exceptions to the parental consent requirement are based on specific types of health services. The state and federal legal framework governing health services to minors identifies some areas where minors have specific rights of consent. The rationale for these exceptions is that if minors were forced to obtain parental consent before testing or treatment for any of these conditions, they might be dissuaded from seeking such care for fear of parental reactions.

• In nearly half of the states, minors have the explicit right to consent to their own contraceptive care.
• In almost every state, minors may consent to receive testing and treatment for STDs.
• In some states, minors may consent to receive testing and treatment for HIV/AIDS.
• Almost every state permits minors to consent to treatment for drug and alcohol abuse.
• A little less than half of the states authorize minors to consent for outpatient mental health services. A few of these states contain age restrictions (ranging from ages 12 to 16).

Exceptions to the parental consent requirement, including the provision of contraceptive services to minors, are based on state statutes, federal law, constitutional provisions, and Supreme Court decisions. In 1965, the United States Supreme Court held, in Griswold v. Connecticut, that the Constitution includes an inherent right to privacy for married people. In subsequent decisions, the Court extended the right of privacy to unmarried people and minors regarding access to contraception. However, in the case of minors, the Supreme Court includes parents' interest in its analysis of the exercise of this right. According to the Court, the "guiding role of parents in the upbringing of children" justifies limitations on the right to privacy of minors. These limitations may vary from state to state.

Confidentiality

Confidentiality pertains to the individual's right to have health records/information protected from unauthorized disclosure to others. The information patients share with health care providers is extremely personal and may be embarrassing. Patients, therefore, expect that it will be kept private and may withhold relevant facts or fail to seek care if they doubt that their confidentiality will be maintained. The obligation to maintain confidentiality has many legal and ethical sources, including professional codes of ethics, Constitutional bases, state licensing laws for physicians and other health care providers, state statutes governing health care information (including records), and federal laws or regulations that apply to organizations that receive federal funds.

The legal obligation to maintain confidentiality is not absolute. Disclosure without a patient's consent may be permitted under some circumstances and required under others. As with the issue of consent, health care providers must know the laws in their state. Clinic personnel should always make clear, to patients and parents alike, the circumstances and extent of confidentiality.

Disclosure of Confidential Information Without Minors' Consent

Some states provide that the parent or guardian must be notified that the minor is seeking or has received medical services. In other states, health care providers have discretion as to whether to inform a parent or guardian about a minor's treatment. Some states provide guidelines to health care providers as to when they may or must notify the parent or guardian about treatment of a minor. Such situations may include

• Severe complications, present or anticipated;
• The necessity of major surgery or prolonged hospitalization;
• Jeopardy to the health of the minor if parents are not notified;
• Benefit to the minor's health and family harmony;
• Commitment of a third party to pay for the services.

In specific circumstances, a health care provider may be obliged to disclose otherwise confidential information. These circumstances include the suspicion of physical or sexual abuse as well as situations in which a minor presents a clear and present danger of harm to her/himself or others.

Confidentiality for Specific Medical Services

There are a number of state laws that govern patient confidentiality with respect to certain medical services such as family planning, STDs, HIV/AIDS, alcohol and drug treatment, and mental health services.

• In some states, a health care provider treating a minor for alcohol or drug abuse may not release such information without the patient's consent. Similar restrictions apply to treatment for STDs and for mental or psychological problems.
• In all but two states, health care providers must report cases of HIV infection or AIDS to the appropriate state public health authorities, and the information is strictly confidential. State statutes vary widely, however, with respect to whether and to whom HIV/AIDS-related information may be disclosed. SBHC/ SLHCs should consult legal counsel, state and local health authorities, and school officials to determine what requirements apply to HIV/AIDS patient information.

Confidentiality of School Records and Medical Records

State and federal statutes regarding confidentiality and disclosure make distinctions between health records and school records. The medical records of SBHC/SLHCs are subject to the stricter standards of confidentiality that apply to patient information. Federal law provides more access for parents to minors' school records—even when those records contain some medical information—than to a minor's medical records.

When the SBHC/SLHC is run by the school itself, clear distinctions must be drawn between medical records and school records. Depending upon specific provisions of state law, some information—such as that related to STD, drug and alcohol abuse, or mental health services—is more completely protected in terms of maintaining client confidentiality than are school records in general. Policies and procedures must distinguish between records that are and that are not accessible to parents, guardians, and others requesting access. Record-keeping and information disclosure procedures for a SBHC/SLHC must be formalized by clinic staff, in consultation with legal counsel and school authorities, to ensure that confidentiality is protected and that unauthorized access is prohibited.

Liability

Although Advocates for Youth does not know of a successful liability claim brought to date against any SBHC/SLHC, liability remains a top concern for SBHC/SLHCs. Some possible bases for liability asserted against a school-based clinic or clinic staff include 1) failure to obtain consent or informed consent, 2) unauthorized disclosure of confidential information, 3) unjustified failure to disclose information under legal compulsion, 4) negligence in providing treatment, 5) failure to provide appropriate treatment, and 6) referral to an allegedly incompetent service provider. Determining whether a SBHC/SLHC, a school, or an individual is liable for violations of certain legal requirements depends on several factors.

• A particular statute or regulation may explicitly assign responsibility for violations to a certain individual. For example, child abuse reporting laws impose liability on individuals who are mandated to report abuse but who fail to do so.
• State statutes creating SBHC/SLHC programs usually identify the parties who are liable. Also, contractual agreements between SBHC/SLHCs and schools, in specifically assigning responsibility to one or both parties, may help resolve questions of liability.

Funding

An important source of rules and regulations for SBHC/SLHCs is funding statutes. Whether the center is supported by the state or federal government, or both, laws authorizing funding may impose restrictions upon the use of funds.

Federal Funding Statutes

A variety of federal funding programs support SBHC initiatives. These programs include: the Maternal and Child Health Services Block Grant; Medicaid; Title X Family Planning; the Alcohol, Drug Abuse, and Mental Health Services Block Grant; and the Community Health Center program. Each contains numerous regulations and procedures for applying, qualifying for, and maintaining funding. Administrators should be aware that federal funding statutes have specific consent and confidentiality requirements that apply to SBHC/SLHCs.

State Funding Statutes

SBHC/SLHCs may receive state funds for family planning, drug and alcohol abuse, mental health, and STD or HIV/AIDS-related services. In addition, a number of states have enacted SBHC/SLHC legislation delineating the services to be funded by the state and, to a greater or lesser extent, defining what services may be offered at a center. A SBHC/SLHC seeking state support for its activities must be aware of the limitations the state may place on services. In addition, federal funding may come with additional or conflicting restrictions. Given the variation of laws across states, it is critical for advocates to work with the federal, state, and local authorities prior to establishing the center to ensure that the SBHC/SLHC meets all applicable funding criteria.

Conclusion

The legal framework under which SBHC/SLHCs operate is an evolving set of federal, state, and local laws. The system is not so complex, however, that staff and advocates must be uninformed as to their responsibilities under the law. Indeed, individuals involved in SBHC/SLHC practice can and should take an active role in learning about the law. SBHC/SLHC practitioners can provide their clients with the best services possible by staying informed about the law.

*Please Note: This is a summary of: Loxterman JR. Introduction to Legal Issues. [Guide to School-Based and School-Linked Health Centers, v. 5] Washington, DC: Advocates for Youth, 1996. This summary is not intended as a substitute for consultation with an attorney. In establishing and operating a school-based clinic, legal advice is essential, due to variations in law and the complexity of the issues.

Compiled by: Jennifer Medenwald, June 1998