Health care professionals say Idaho law leaves gaps in care for minors

A new law in Idaho requires clinicians to seek consent from a parent or legal guardian for all health care services provided to minors outside of an emergency.

The law also states that parents may sue a provider, health care organization or government entity that breaks the law for monetary damages and attorney’s fees.

Previously, minors typically deemed able to comprehend the nature and risks of treatment, could consent to a range of health care services including treatment for sexually transmitted diseases, birth control, substance use disorder treatment and mental health services.

Caitlin O’Brien is a lawyer at the Coeur d’ Alene-based law group Smith + Malek. She focuses on health care law, working with federally qualified health centers.

Lawmakers have described the measure as an effort to protect children, naming the new law the “Parents’ Rights in Medical Decision-Making Act.”

However, O’Brien said, the law as written leaves a gap in access to care for children who do not have a parent involved in their life and do not have a legal guardian.

“They might be living with a grandparent, or an aunt, an uncle, a neighbor, or friend that hasn’t gone through the court system to be appointed legal guardian,” she said. “There’s nobody to consent for their health care, and they can’t do it themselves.”

Matthew Lassen is a member of CHAS Health’s medical director team, and is the only director located in Idaho. In response to the new law, CHAS Health implemented a blanket medical consent form parents can fill out annually, he said.

Lassen said CHAS always encourages parents to be active in their children’s health care. However, the biggest concern that providers face is for minors they’ll have to turn away because a parent is unavailable, or unwilling to consent to care for sensitive issues related to things such as sexuality, substance use disorder or mental health services.

“There will likely be situations where consent is not in place. So, we will be forced to turn a minor patient away in a situation where previously, we could have provided care,” he said.

When patients are turned away, Lassen said, it also increases the chance they end up being seen in the emergency room instead of with a provider they already know and trust. That could also mean a patient is less likely to feel comfortable discussing sensitive topics, he said.

“Anytime we divert services that can be provided at a primary care location to an emergency department, that is not optimal care, and it increases the burden on our emergency departments,” Lassen said.

O’Brien said the law is a particular concern for unhoused minors. While emancipated minors are exempt from the requirement, O’Brien said, Idaho also does not have a statutory process for emancipation. Children may be declared emancipated if they are married or in active military service.

“It’s not easy for them to go petition the court to become emancipated,” she said. “I don’t know how they’re going to even be treated for, like, strep throat or have their annual wellness exams.”

The law also requires parents be given access to the medical records of their children, with some exception for court orders and parents subject to investigations about a crime committed against the child.

Certain protections under HIPAA also likely preempt Idaho’s law, though providers have been cautioned to apply HIPAA exceptions carefully because of the threat of lawsuit under the act.

O’Brien said she hopes the law will be narrowed in the next legislative session to allow better access to health care for youth.

“I’m hopeful that we’re going to be able to make a change and narrow it … if we can educate the legislators enough to understand what a chilling effect it’s had on health care for youth,” she said. “It’s not just parents consenting to birth control. It’s much farther reaching than that.”