During Idaho’s 2024 legislative session, Senate Bill 1329 (“the Act”) passed and Governor Brad Little signed it into law. The bill became effective on July 1, 2024.
The Act amends the domestic relations code by adding a new section designated as Idaho Code Section 32-1015, Parental Rights in Medical Decision-Making. The law is intended to strengthen a parent’s fundamental rights to make decisions with respect to his or her minor children’s healthcare.
Key Aspects of Senate Bill 1329
The Act states that “except as otherwise provided by court order, an individual shall not furnish a health care service or solicit to furnish a health care service to a minor child without obtaining the prior consent of the minor child’s parent.” In addition to a court order, the Act sets forth the following two exceptions:
- When a parent has given blanket consent authorizing the healthcare provider to provide healthcare services to the minor child; or
- When the healthcare provider reasonably determines that there is a medical emergency and
- Providing the healthcare service(s) is necessary to avoid death or imminent and irreparable physical injury to the child; or
- The healthcare provider is unable to locate or contact a parent of the minor child and not providing the necessary healthcare services would result in the minor child’s life being seriously endangered by further delay.
In addition, with certain limited exceptions, the Act states that “no healthcare provider or governmental entity shall deny a minor child’s parent access to health information that is: (a) in such health care provider’s or governmental entity’s control; and (b) requested by the minor child’s parent.”
Finally, the Act provides that “any parent who is deprived of a right as a result of a violation of this {Act} shall have a private right of action against the individual, health care provider, or governmental entity.”
Impact of SB 1329 and FAQs
Some commentators have suggested that the Act conflicts with and repealed by implication other statutory provisions that allow healthcare providers to treat minors without parental consent such as: emergency circumstances, emancipation, STI testing, contraceptives, and blood donations..
In September 2024, our healthcare team hosted a legal updates webinar dedicated to SB 1329 and the Emergency Medical Transport and Active Labor Act (EMTALA). Some key themes and questions surrounding SB 1329 were as follows:
Does a healthcare organization need parental consent for each healthcare visit, or is a blanket consent form that is signed once acceptable?
If the parent has signed a blanket consent for all healthcare services, the healthcare entity should be able to rely on that and treat the child going forward without getting parental consent each time. If a blanket concept form is not recorded, the entity would need parental consent at each visit.
We recommend getting a blanket consent form signed on an annual basis. Please contact us for support in creating a comprehensive blanket consent form.
What if a caretaker – not a parent – brings a minor to an appointment?
The healthcare organization can attempt to contact the minor’s parent via telephone for verbal consent and document if the consent was granted or denied on the patient’s record. The statute does not require consent to be written. However, if parental consent cannot be established at the time of the appointment, the minor will be turned away.
The best way to record verbal consent is to be as specific as possible. Document exactly what was said, how it was obtained, the participants in the conversation, time and date of the conversation.
Do both biological parents need to consent? What if they have split custody?
Given that “parent” is written in its singular form in the Act, both parents are not required to consent. Even in the case of split custody, you only need one parent to consent for treatment. Unless you have documentation from the court that says both parents must consent to this treatment of the minor, you can rely on a single parent’s consent for treatment.
How does SB 1329 impact healthcare records that were previously confidential?
It is likely that records considered confidential under HIPAA prior to SB 1329 going into effect may now be released under state law.
HIPAA allows providers to release records in the event that state law requires them to do so. If providers believe records that were previously confidential may put the child at risk if the parent has access to them, the best recourse is to seek a protective order through the courts.
How does Senate Bill 1329 impact care of a minor who is pregnant?
The minor could consent to the healthcare of their unborn or born child, but the minor cannot consent to their own healthcare even when pregnant unless they are also emancipated. In Idaho, being pregnant does not automatically grant emancipation.
Once the baby is born, the minor can consent to the treatment of their child because they are the parent and there’s no age limit on the definition of parent.
If a school counselor isn’t treating, assessing, or screening, would consent still be required to talk to a student?
As long as the counselor is not meeting the definition of providing a healthcare service, they are able to speak with the student without parental consent. However, the definition of “healthcare service” is very broad, and therefore it is important that the counselor is well-versed in the definition so that they are not inadvertently providing a mental health screening, for example.
Next Steps
Subject to further clarification and developments, the conservative approach is for healthcare providers to obtain parental consent prior to performing any healthcare related services to a minor child unless one of the Act’s exceptions applies. While not definitively repealed, we do not recommend at this time relying solely on the other statutory provisions that grant minors the ability to consent; this, however, is obviously a developing area of the law.
Smith + Malek is here to help alleviate the confusion surrounding Senate Bill 1329. Our healthcare practice lead, Caitlin O’Brien, has been featured in the news on this topic. If you have any questions, or seek additional guidance on this matter, please reach out.