Bill Text: NJ A3528 | 2024-2025 | Regular Session | Introduced
Bill Title: Requires parents and guardians be provided access to medical records of minor patients; provides immunity to health care facilities and professionals that provide access to records.
Spectrum: Unknown
Status: (Introduced) 2024-02-05 - Introduced, Referred to Assembly Health Committee [A3528 Detail]
Download: New_Jersey-2024-A3528-Introduced.html
Sponsored by:
Assemblyman JOHN V. AZZARITI JR., M.D.
District 39 (Bergen)
SYNOPSIS
Requires parents and guardians be provided access to medical records of minor patients; provides immunity to health care facilities and professionals that provide access to records.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning patient medical records, amending P.L.2022, c.51, P.L.1965, c.217 and P.L.1968, c.230, and supplementing P.L.1971, c.136 (C.26:2H-1 et seq.) and chapter 1 of Title 45 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.2022, c.51 (C.2A:84A-22.18) is amended to read as follows:
1. As used in sections 1 and 2 of P.L.2022, c.51 (C.2A:84A-22.18 and C.2A:84A-22.19):
"Person" includes an individual, partnership, association, limited liability company, or corporation.
"Reproductive health care services" means all medical, surgical, counseling, or referral services relating to the human reproductive system including, but not limited to, services relating to pregnancy, contraception, or termination of a pregnancy.
a. Except as provided in sections 3 through 7 of P.L.1968, c.185 (C.2A:84A-22.3 through 2A:84A-22.7), section 1 of P.L.1970, c. 313 (C.2A:84A-22.8), section 29 of P.L.1968, c.401 (C.45:8B-29), and subsection b. of this section, in any civil action or proceeding preliminary thereto or in any probate, legislative or administrative proceeding, a covered entity, as set forth in the medical privacy and security rules pursuant to Parts 160 and 164 of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulations, established pursuant to the "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, shall not disclose, unless the patient or that patient's conservator, guardian, or other authorized legal representative explicitly consents in writing to the disclosure:
(1) any communication made to the covered entity, or any information obtained by the covered entity from, a patient or the conservator, guardian, or other authorized legal representative of a patient relating to reproductive health care services that are permitted under the laws of this State; or
(2) any information obtained by personal examination of a patient relating to reproductive health care services that are permitted under the laws of this State.
A covered entity shall inform the patient or the patient's conservator, guardian, or other authorized legal representative of the patient's right to withhold such written consent at or before the time reproductive health care services are rendered or at such time as the patient discloses any information relating to reproductive health care services that have been previously rendered.
b. Written consent of the patient or the patient's conservator, guardian, or other authorized legal representative shall not be required for the disclosure of any communication or information:
(1) pursuant to the laws of this State or the Rules of Court;
(2) by a covered entity against whom a claim has been made, or there is a reasonable belief will be made, in an action or proceeding, to the covered entity's attorney or professional liability insurer or insurer's agent for use in the defense of the action or proceeding;
(3) to the Commissioner of Health, Human Services, or Banking and Insurance, or any professional licensing board operating under the authority of the Division of Consumer Affairs in the Department of Law and Public Safety for records of a patient of a covered entity in connection with an investigation of a complaint, if the records are related to the complaint; or
(4) if child abuse, abuse of an elderly individual, abuse of an individual who is incapacitated, or abuse of an individual with a physical or mental disability is known or in good faith suspected. For the purposes of this paragraph, the provision of or material support for reproductive health care services that are permitted under the laws of this State shall not constitute abuse.
Nothing in this subsection shall be construed to conflict with or displace any requirements or conditions for disclosure set forth under 45 C.F.R. ss.160.203 and 164.514.
c. Nothing in this section shall be construed to impede the lawful sharing of medical records as permitted by State or federal law or the Rules of Court, including as authorized under section 1 of P.L.1965, c.217 (C.9:17A-1), section 1 of P.L.1968, c.230 (C.9:17A-4), and sections 5 and 6 of P.L. , c. (C. and C. ) (pending before the Legislature as this bill).
(cf: P.L.2022, c.51, s.1)
2. Section 2 of P.L.2022, c.51 (C.2A:84A-22.19) is amended to read as follows:
2. A public entity of this State or employee, appointee, officer or official or any other person acting on behalf of a public entity shall not provide any information or expend or use time, money, facilities, property, equipment, personnel or other resources in furtherance of any interstate investigation or proceeding seeking to impose civil or criminal liability upon a person or entity for:
(1) the provision, receipt, or seeking of, or inquiring or responding to an inquiry about, reproductive health care services, as defined in section 1 of P.L.2022, c.51 (C.2A:84A-22.18), that are legal in this State; or
(2) assisting, advising, aiding, abetting, facilitating, soliciting, or conspiring with any person or entity providing, receiving, seeking, or inquiring or responding to an inquiry about, reproductive health care services, as defined in section 1 of P.L.2022, c.51 (C.2A:84A-22.18), that are legal in this State.
This section shall not apply to any investigation or proceeding when the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State. This section shall not apply if it is necessary for the agency or person to engage in conduct otherwise prohibited by this section in order to comply with a valid order issued by a court with jurisdiction over the agency or person, or to comply with applicable provisions of State or federal law. Nothing in this section shall be construed to impede the lawful sharing of medical records as permitted by State or federal law or the Rules of Court, including as authorized under section 1 of P.L.1965, c.217 (C.9:17A-1), section 1 of P.L.1968, c.230 (C.9:17A-4), and sections 5 and 6 of P.L. , c. (C. and C. ) (pending before the Legislature as this bill).
(cf: P.L.2022, c.51, s.2)
3. Section 1 of P.L.1965, c.217 (C.9:17A-1) is amended to read as follows:
1. The consent to the performance of medical or surgical care and procedure by a hospital or by a physician licensed to practice medicine and surgery executed by a married person who is a minor, or by a pregnant woman who is a minor, on his or her behalf or on behalf of any of his or her children, shall be valid and binding, and, for such purposes, a married person who is a minor or a pregnant woman who is a minor shall be deemed to have the same legal capacity to act and shall have the same powers and obligations as has a person of legal age. Notwithstanding any other provision of the law, an unmarried, pregnant minor may give consent to the furnishing of hospital, medical and surgical care related to her pregnancy or her child, although prior notification of a parent may be required pursuant to P.L.1999, c.145 (C.9:17A-1.1 et al.) and such consent shall not be subject to disaffirmance because of minority. The consent of the parent or parents of an unmarried, pregnant minor shall not be necessary in order to authorize hospital, medical and surgical care related to her pregnancy or her child. For the purposes of the federal health privacy rule set forth at 45 CFR Parts 160 and 164, nothing in this section shall be construed to preclude a parent or guardian of a minor who consents to care or treatment pursuant to this section from being provided access to the medical records pertaining to that care or treatment.
(cf: P.L.1999, c.145, s.1)
4. Section 1 of P.L.1968, c.230 (C.9:17A-4) is amended to read as follows:
1. a. (1) The consent to the provision of medical or surgical care or services or a forensic sexual assault examination by a hospital or public clinic, or consent to the performance of medical or surgical care or services or a forensic sexual assault examination by a health care professional, when executed by a minor who is or believes that he or she may have a sexually transmitted infection, or who is at least 13 years of age and is or believes that he or she may be infected with the human immunodeficiency virus or have acquired immune deficiency syndrome, or by a minor who, in the judgment of the treating health care professional, appears to have been sexually assaulted, shall be valid and binding as if the minor had achieved the age of majority. Any such consent shall not be subject to later disaffirmance by reason of minority. In the case of a minor who appears to have been sexually assaulted, the minor's parents or guardian shall be notified immediately, unless the treating healthcare professional believes that it is in the best interests of the patient not to do so. Inability of the treating health care professional, hospital, or clinic to locate or notify the parents or guardian shall not preclude the provision of any emergency or medical or surgical care to the minor or the performance of a forensic sexual assault examination on the minor.
(2) As used in this subsection, "health care professional" means a physician, physician assistant, nurse, or other health care professional whose professional practice is regulated pursuant to Title 45 of the Revised Statutes.
b. When a minor believes that he or she is adversely affected by a substance use disorder involving drugs or is a person with a substance use disorder involving drugs as defined in section 2 of P.L.1970, c.226 (C.24:21-2) or is adversely affected by an alcohol use disorder or is a person with an alcohol use disorder as defined in section 2 of P.L.1975, c.305 (C.26:2B-8), the minor's consent to treatment under the supervision of a physician licensed to practice medicine, or an individual licensed or certified to provide treatment for an alcohol use disorder, or in a facility licensed by the State to provide for the treatment of an alcohol use disorder, shall be valid and binding as if the minor had achieved the age of majority. Any such consent shall not be subject to later disaffirmance by reason of minority. Treatment for an alcohol use disorder or a substance use disorder involving drugs that is consented to by a minor shall be considered confidential information between the physician, the treatment provider, or the treatment facility, as appropriate, and the patient, and neither the minor nor the minor's physician, treatment provider, or treatment facility, as appropriate, shall be required to report such treatment when it is the result of voluntary consent, except as may otherwise be required by law.
When a minor who is [sixteen] 16 years of age or older believes that he or she is in need of behavioral health care services for the treatment of mental illness or emotional disorders, the minor's consent to temporary outpatient treatment, excluding the use or administration of medication, under the supervision of a physician licensed to practice medicine, an advanced practice nurse, or an individual licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or licensed psychologist, or in an outpatient health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.), shall be valid and binding as if the minor had achieved the age of majority. Any such consent shall not be subject to later disaffirmance by reason of minority. Treatment for behavioral health care services for mental illness or emotional disorders that is consented to by a minor shall be considered confidential information between the physician, the individual licensed to provide professional counseling, the advanced practice nurse, or the health care facility, as appropriate, and the patient, and neither the minor nor the minor's physician, professional counselor, nurse, or outpatient health care facility, as appropriate, shall be required to report such treatment when it is the result of voluntary consent.
The consent of no other person or persons, including but not limited to, a spouse, parent, custodian, or guardian, shall be necessary in order to authorize a minor to receive such hospital services, facility, or clinical care or services, medical or surgical care or services, or counseling services from a physician licensed to practice medicine, an individual licensed or certified to provide treatment for an alcohol use disorder, an advanced practice nurse, or an individual licensed to provide professional counseling under Title 45 of the Revised Statutes, as appropriate, except that behavioral health care services for the treatment of mental illness or emotional disorders shall be limited to temporary outpatient services only.
c. Except as provided in subsections a. and b. of this section, and to the extent authorized under federal law, the parent or guardian of an unemancipated patient who is younger than 18 years of age shall be provided access to the patient's medical records without the need for the patient to authorize the parent or guardian to access the records. For the purposes of the federal health privacy rule set forth at 45 CFR Parts 160 and 164, nothing in this section shall be construed to preclude a parent or guardian of an unemancipated minor who is younger than 18 years of age from accessing the medical records pertaining to care or treatment provided to the minor pursuant to subsection a. of this section, unless the care or treatment is provided to a minor who appears to have been sexually assaulted and the treating healthcare professional believes that it is in the best interests of the patient not to provide notice to the minor's parent or guardian.
(cf: P.L.2017, c.131, s.7)
5. (New section) Except as provided in subsections a. and b. of section 1 of P.L.1968, c.230 (C.9:17A-4), a health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) shall provide the parent or guardian of an unemancipated patient who is younger than 18 years of age access to any of the patient's medical records that are in the facility's custody without the need for the patient to authorize the parent or guardian to access the records. Except in cases of gross negligence or willful misconduct, a health care facility shall be immune from any civil or criminal liability and any adverse administrative or licensure action for providing the parent or guardian of an unemancipated patient younger than 18 years of age access to the patient's medical records pursuant to this section.
6. (New section) Except as provided in subsections a. and b. of section 1 of P.L.1968, c.230 (C.9:17A-4), a health care professional licensed pursuant to Title 45 of the Revised Statutes shall provide the parent or guardian of an unemancipated patient who is younger than 18 years of age access to any of the patient's medical records that are in the health care professional's custody without the need for the patient to authorize the parent or guardian to access the records. Except in cases of gross negligence or willful misconduct, a health care professional shall be immune from any civil or criminal liability and any adverse administrative or professional disciplinary action for providing the parent or guardian of an unemancipated patient younger than 18 years of age access to the patient's medical records pursuant to this section.
7. (New section) The Commissioner of Health and the Director of the Division of Consumer Affairs in the Department of Law and Public Safety shall promulgate such rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as are necessary to implement the provisions of this act.
8. This act shall take effect immediately.
STATEMENT
This bill provides that, in general, health care facilities and health care professionals will be required provide the parent or guardian of an unemancipated patient who is younger than 18 years of age access to the patient's medical records without the need for the patient to authorize the parent or guardian to access the records.
Under current law, the federal health privacy rule established under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requires that covered entities keep a patient's medical records confidential unless the patient allows the entity to disclose the records. A minor child's parent is typically considered to be the child's "personal representative" and is therefore generally authorized to access or receive the child's medical records and other protected health information. However, HIPAA provides that, under certain circumstances, a parent will not be considered the minor child's personal representative and will not be afforded access to the child's medical information, including when state law only requires the child's consent to care and treatment. This bill specifies that, except where State law expressly restricts parental access to a minor's treatment records, which include certain care for behavioral health issues and certain cases involving the apparent sexual assault of a minor, parents should be provided access to the patient's medical records, notwithstanding the federal health privacy rule.
The bill also expressly provides that nothing in P.L.2022, c.51 (C.2A:84A-22.18 et al.), which provides that medical records pertaining to reproductive health care do not have to be produced in response to certain judicial, legislative, and administrative proceedings, is not to be construed to restrict access to a minor child's medical records as provided under the bill.
Except in the case of gross negligence or willful misconduct, a facility or professional providing a parent or guardian with access to a minor child's medical records under the bill will be immune from civil and criminal liability and adverse administrative, licensure, and professional disciplinary actions in connection with providing a parent access to a minor patient's medical records pursuant to the bill.
