Once you become a parent, whether as a mother or a father, something primal emerges. Mamas become terrifying tigers; Daddies become beastly bears. Nothing — no danger or insignificant official — will stand between parents and their children. Pitting Mom against Dad, then, is a bit like watching Muhammad Ali take on Joe Frazier in the ring. What kind of fight do you have on your hands when your wife tries to withhold vital health records about your kids?
The Battle Is Already Lost
Bad news for your wife: she lost this battle before she started it. Two sets of governing documents control the information flow with medical records.
One is Virginia’s own laws, Code of Virginia § 20-124.6, aptly titled “Access to minor’s records.” It states the obvious: parents are the primary guardians of their children. The law is succinct enough we can quote it in full here:
- Notwithstanding any other provision of law, neither parent, regardless of whether such parent has custody, shall be denied access to the academic or health records or records of a child day center or family day home of that parent’s minor child unless otherwise ordered by the court for good cause shown or pursuant to subsection B.
- In the case of health records, access may also be denied if the minor’s treating physician, clinical psychologist, or clinical social worker has made a part of the minor’s record a written statement that, in the exercise of his professional judgment, the furnishing to or review by the requesting parent of such health records would be reasonably likely to cause substantial harm to the minor or another person. If a health care entity denies a parental request for access to, or copies of, a minor’s health record, the health care entity denying the request shall comply with the provisions of subsection F of § 32.1-127.1:03. The minor or his parent, either or both, shall have the right to have the denial reviewed as specified in subsection F of § 32.1-127.1:03 to determine whether to make the minor’s health record available to the requesting parent.
The default for access to your own kids’ medical records, whether you are married, unmarried, separated, or divorced, is for you to have them. The only stipulation: a court has already prohibited a records release under subsection B, specifically aimed at preventing abusive parents from finding out their own kids ratted them out.
The other safeguard in the law comes from the Health Insurance Portability and Accountability Act (HIPAA), Section 164.502(g)(1):
(g) (1) Standard: Personal representatives. As specified in this paragraph, a covered entity must, except as provided in paragraphs (g)(3) and (g)(5) of this section, treat a personal representative as the individual for purposes of this subchapter.
This portion of HIPAA equates a “personal representative,” not a parent, with the minor patient. Virginia state law determines if the parent can be treated as a personal representative under HIPAA:
(i) Implementation specification: Unemancipated minors. If under applicable law a parent, guardian, or other person acting in loco parentis has authority to act on behalf of an individual who is an unemancipated minor in making decisions related to health care, a covered entity must treat such person as a personal representative under this subchapter, with respect to protected health information relevant to such personal representation, …
The phrase “in loco parentis” is Latin legalese for “in the place of the parent,” and extends under Code of Virginia (in many citations) to teachers and other school officials, divorced parents, guardians, guardians ad litem, and anyone else with a moral and ethical duty to safeguard children.
And In This Corner …
If you find yourself pitted against your wife over a medical issue involving your children, your wife is badly misinformed to stand against you. In her corner, she may or may not have a cooperative attorney who will push the point just shy of actually breaking the law.
In your corner, though, is the entirety of the Virginia legal system, the federal HIPAA law, and the medical community. And, we hope, your own attorney.
You as the parent are entitled to your children’s medical records unless revealing those records endangers your child. The only situation where that could apply is if your own children tell medical authorities you abused them.
Your attorney can press your wife on that false claim if necessary; she will go down for the count. (If the claim is true, that is a deeper and darker matter.)
Hit With a Cheap Shot? Call The Firm For Men!
Your wife is taking a cheap shot by trying to withhold your own kids’ important medical information from you. Don’t enter the ring to duke it out with her, though; let your attorney handle it. With something as simple as a quick “law refresher” call from your attorney to hers, she may throw in the towel.
Your call to The Firm For Men will yield plenty of information about separation, divorce, and Virginia’s laws protecting your rights. Contact us today or telephone (757) 383-9184 to speak with an experienced, knowledgeable attorney.