Where the patient is a minor and to reduce a risk of harm other than physical abuse, will the Preventing Harm Exception cover an actor’s practices that interfere with a parent or legal guardian’s access, exchange, or use of the minor’s EHI?

Yes, where the risk of harm has been determined on an individualized basis and all other conditions of the Preventing Harm Exception are met. For example, the practice must be no broader than necessary and the actor must reasonably believe the practice will substantially reduce the risk of harm. (For all the conditions of the Preventing Harm Exception, please see 45 CFR 171.201.)

For purposes of the Preventing Harm Exception, a parent or legal guardian would be considered a patient’s legal representative. The Preventing Harm Exception’s type of harm condition applies a “substantial harm” standard for practices interfering with a patient’s representative’s requested access, exchange, or use of the patient’s EHI. (See 45 CFR 171.201(d)(1)).

The type of harm conditions for Preventing Harm Exception coverage of practices interfering with patients’ and their representatives’ access to EHI on the basis of an individualized determination of risk are specifically aligned with the HIPAA Privacy Rule’s grounds for reviewable denial of an individual’s right of access under the Privacy Rule. (See also ONC Cures Act Final Rule preamble discussion and Table 3—Mapping of Circumstances Under § 171.201(d) to Applicable Harm Standards).