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I. THL page 5, Minors and Consent
II. THL page 21, Child Abuse Reporting
III. THL page 31, Emergency Contraception
IV. THL page 34, Minors and the HPV Vaccine
V. THL page 39, Initial Tests and Diagnoses of HIV
VI. THL page 47, Confidentiality in Residential Facilities
VII. THL page 52, Confidentiality and Mental Health Care
VIII. THL page 59, Public Health Insurance Programs Available to Minors
IX. THL page 65, Reproductive Rights Project Contact Information
Footnotes
A. Footnotes 25-29, Correction
I. Page 5, Clarification: Minors and Consent
Providers should note that a minor’s ability to give informed consent is based on capacity for consent, as discussed above, not on age and there is no minimum age requirement for giving informed consent. Some young minors may have the capacity for consent, while older minors may not. How capacity for consent was determined should be documented in a patient’s medical file.
II. Page 21, Child Abuse Reporting
A 2007 provision now requires the mandated reporter to personally report suspected child abuse to the State Central Register, and inform the director of his or her agency or institution. This is a change from previous law, which called for a medical staff member to first report to a designated agent for the agency or institution, who then was responsible for making the report.*
Also, as of 2007, social service workers who are employed by, or who have contracts with, local social service districts to provide services to children and/or families are now also under an additional obligation to report child abuse or maltreatment if a third party comes to them in their official capacity and provides them with information that, if true, would render a child abused or maltreated. The law requires social service workers to take the information from the third party at face value, and not to make a judgment call about whether or not the information is true.**
* N.Y. Soc. Serv. Law § 413
**N.Y. Soc. Serv. Law § 413(1)(b) (McKinney 2003). “Social service worker” is defined by New York State Office of Child and Family Services as professional or paraprofessional staff either employed by, or who have contracts with, local social service districts to provide services to children and/or families. 07-OCFS-ADM-15 (Dec. 13, 2007).
III. Page 31, Emergency Contraception
Purchasing Emergency Contraception
In 2006, the FDA approved emergency contraception for sale to people over the age of 18. Men and women over the age of 18 can purchase emergency contraception from pharmacists without a prescription. Minors are still required to present a prescription at a pharmacy or can obtain emergency contraception directly from family planning clinics and other providers across the state. For a directory of providers, visit www.not-2-late.com.
Emergency Contraception and Medicaid
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 emergency contraception from a pharmacist.
Emergency Contraception and Rape Crisis Care
New York State Public Health Law requires that every hospital providing emergency treatment to a survivor of sexual assault must promptly provide written and oral information about emergency contraception, and must also provide the emergency contraception when requested.*
*N.Y. Pub. Health Law § 2805-p (McKinney 2008).
IV. Page 34, Minors and HPV Vaccines
In 2007, the FDA approved Gardisil, a vaccine developed to protect women against common strains of HPV, a virus that is linked to both cervical cancer and genital warts. The vaccine has been approved for use in women age 11-26, and is available through the vaccines for children program.
More information about the HPV vaccine.
Consent
The best course for providers administering the HPV vaccine, as with any medical treatment, is to attempt to obtain a minor’s permission to involve a parent in the immunization decision. If parental involvement is not possible, it is the NYCLU’s position that New York law supports the provision of the vaccine without parental consent.* However, the New York State Department of Health initially disagreed with that interpretation. While DOH is no longer affirmatively advising providers that parental consent is necessary, it has refused requests to issue further clarification of the law in this area. Because of this uncertainty, adolescent health care providers should seek the advice of legal counsel when setting their own policies or addressing particular cases in this area.
* See N.Y. Pub. Health Law § 2305; see also discussion of “mature minors” doctrine, pages 12-13. For a full analysis of the legal basis for minors to consent on their own to provision of the HPV vaccine, see NYCLU Memorandum from Galen Sherwin, Director NYCLU Reproductive Rights Project to Interested Parties re Parental Consent for HPV Vaccine, June 6, 2008.
V. Page 39, Update: Initial Tests and Diagnoses of HIV: Reports to the Department of Health
The law has changed. The paragraph should now read:
Physicians and other designated medical personnel125 must report to the New York State Commissioner of Health the names of individuals who receive an initial positive HIV test, an initial diagnosis of AIDS, an initial diagnosis of an AIDS-related illness. In addition, under a new regulation, laboratories must divulge the results of other HIV-related tests, regardless of the patient’s stage of treatment.126 Note that this is a change from the previous rule, which only permitted reporting of the initial test result to the Commissioner. The State Department of Health cannot disclose any of this information further, except to the extent necessary to conduct contact tracing (See below).127
VI. Page 47-48, Clarification: Confidentiality and Sexual Assault Care in Mental Health Facilities
Confidentiality may also be breached in cases of sexual assaults (or other crimes) that take place at certain treatment facilities where patients are receiving mental health care, due to certain reporting obligations (see additional material on page 52).
VII. Page 52, Clarification: Special Rules for Confidentiality in Mental Health Facilities
Although information relating to mental health treatment to which minors have consented on their own generally may not be disclosed without the minor’s permission, there are some important exceptions to this general rule. In 2007, the NY Legislature passed a law known as “Jonathan’s Law,”* which requires directors of certain residential treatment facilities licensed by the State Office of Mental Retardation and Development Disabilities (OMRDD) to report incidents to parents that affect the health and safety of people receiving services, and allows parents and guardians to access facility records related to such incidents. A sexual assault that occurs at such a facility or under its auspices would trigger a report and render the records related to the incident available to parents.** Additionally, there are other provisions of the Mental Hygiene Law which allow for reporting to state officials and law enforcement authorities when a crime occurs either within certain types of mental health facility (which is not limited to residential facilities) or under the auspices of the facility.***
Because of this new law and pre-existing law enforcement reporting obligations, confidentiality protections will vary from case to case depending on many factors, such as where the crime 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 general confidentiality rules apply to a particular situation at a mental health care facility.
* N.Y. Mental Hyg. Law §§ 33.23, 33.25, 45.07 (McKinney 2008).
** Emergency Regulations to implement Jonathan’s Law, effective Mar. 27, 2008, available at http://www.omr.state.ny.us/regs/hp_regs_jlaw.jsp (adding section (h) to 14 N.Y.C.R.R. §624.6).
*** See N.Y. Comp. R. & Regs. (N.Y.C.R.R.) tit. 14, § 624.5 (2008). See N.Y. Mental Hygiene Law § 13.21 (McKinney 2002); see also 14 N.Y.C.R.R. §§ 624.3(d); 633.3(d); N.Y. Mental Hygiene Law §16.13(b) (referring to OMRDD facilities) (McKinney 2002); see also 14 N.Y.C.R.R. §§ 624.3(d), (g); 633.3(d); N.Y. Mental Hygiene Law § 31.11 (referring to OMH facilities) (McKinney 2002); 14 N.Y.C.R.R. § 524.2(d)
VIII. Page 59, Addition: Public Health Insurance Programs Available to Minors
A fact sheet and FAQ entitled “Public Health Insurance Options and Reproductive Health for Teens in New York” created by the NYCLU can be accessed at http://www.nyclu.org/node/1335.
IX. Page 65, Update: Reproductive Rights Project Contact Information
When a minor is faced with a difficult legal question relating to health care that is not addressed by this booklet, feel free to contact us directly at:
Reproductive Rights Project
New York Civil Liberties Union
125 Broad Street, 19th Floor
New York, NY 10004
Phone: (212) 607-3341
Fax: (212) 607-3318
E-mail: thi@nyclu.org
FOOTNOTES
A. Footnotes 25-29, Correction
Footnotes 25-29 were misnumbered in the 2002 edition of THL. Below are the correct citations for footnotes 25-29.
25. Henry v. Boyd, 473 N.Y.S. 2d 892, 896 (4th Dep’t 1984) (“[T]he marriage of a child under 21 years old renders the child no longer subject to the control and guidance of her parents, and on common law principles, she is emancipated and no longer legally required to accede to her parents demands, but is free to avoid their authority, no matter how reasonably exercised.”); Cochran v. Cochran, 89 N.E. 470, 471 (N.Y. 1909); Matter of Williams, 431 N.Y.S.2d 334, 335 (Fam. Ct. Monroe Co. 1980); Bach v. Long Island Jewish Hospital, 267 N.Y.S.2d 289, 290-291 (Sup. Ct. Nassau Co. 1966). See also N.Y. Domestic Relations Law § 84 (McKinney 2008) (terminating the general guardianship with respect to the person and not with respect to property when a person marries before he or she attains the age of majority).
26. Zuckerman, 546 N.Y.S.2d at 668; Fauser v. Fauser, 271 N.Y.S.2d 59, 61 (Fam. Ct. Nassau Co. 1966). Note that after the military service ends, “whether [the minor] continues his emancipation is solely within his control. He can continue this period of emancipation by remaining self-supporting and not submitting himself to the care and control of his parents. He may revert to his unemancipated status and be dependent upon his parents for his support until he becomes re-emancipated or reaches his majority.” Id. at 61. See also, Crimmins v. Crimmins, 745 N.Y.S. 2d 686 (N.Y. Fam. Ct. 2002) (finding that although son’s previous declaration of emancipation terminated former support obligation, the change in the son’s circumstances required that there was still an obligation to provide support to a minor under the age of 21).
27. Eason v. Eason, 446 N.Y.S.2d 392 (App. Div. 2d Dep’t 1982); Alice C. v. Bernard G.C., 602 N.Y.S.2d 623, 628 (App. Div. 2d Dep’t 1993); Cellamare v. Lakeman 829 N.Y.S. 2d 588, 589 (N.Y.A.D. 2d Dep’t 1997).
28. Gittleman v. Gittleman, 438 N.Y.S.2d at 132.
29. For example, in New York City, a youth services organization called The Door has a Legal Services Center that provides such letters for young people. Information is available at http://www.door.org/programs/legal.html, or see the back of this booklet for further contact information.
Penal law was reformed in 2000. Please substitute the following text for the current footnote 64.
64. This is because the law provides that caregivers who allow a sexual offense to be committed against a child may be considered abusive or neglectful. 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 voluntary. N.Y. PENAL LAW § 130.20(1)-(2) (McKinney 2004) (defining sexual misconduct as engaging in sexual intercourse or oral or anal sexual conduct with another person “without such person’s consent”); N.Y. PENAL LAW § 130.05(2)(b) (McKinney 2004) (“Lack of consent results from…[i]ncapacity to consent.”); N.Y. PENAL LAW § 130.05(3)(a) (McKinney 2004) (“A person is deemed incapable of consent when he or she is…less than 17 years old.”).
New Regulations were promulgated in 2006. Please substitute the following text for the current footnote 126.
126. The reporting law is triggered when a patient is initially diagnosed as HIV-positive or when a patient receives an initial diagnosis that he or she has AIDS, or an HIV-related illness (including diagnoses of new opportunistic infections). For example, when a patient undergoes a diagnostic test when he or she begins medical treatment for HIV/AIDS or when he or she switches providers, the diagnostic test is likely to trigger the reporting requirements. N.Y. PUB. HEALTH LAW § 2130(1) (McKinney 2001); 10 N.Y.C.R.R. § 63.4(a)(1) (2001). Laboratories must also report the results of certain HIV-related tests (i.e., any blood or other lab test that a patient may receive in the course of ongoing care), regardless of the patient’s stage of treatment). See 10 N.Y.C.R.R. § 63.4(a)(4)(i), (a)(4)(ii).
