MEMORANDUM
TO:
Coleman H. Casey
RE:
Student Health Issues
You asked me to research various issues relating to student health care in the
private school setting, and, specifically, the provision of treatment and/or counseling for
sexually transmitted diseases and pregnancy. You explained that the School (hereinafter
“School”), a secondary boarding school, operates an infirmary staffed by a full time
licensed physician who provides students with various medical treatment and associated
care. Parents provide consent for medical treatment of their child by this physician prior to
the child’s attendance.
The School is concerned about the provision of reproductive health care and
treatment for sexually transmitted diseases to their boarding students by their licensed
physician. Specifically, you have asked whether the infirmary operated by the School is
governed by the various state statutes concerning the confidentiality of medical treatment
to minors such that the School would be required to keep confidential from parents all such
information. You also asked that I review the language the School intends to include in its
handbook, which indicates that the School will comply with all such laws relating to
confidentiality.
Briefly, research revealed that, while the operation of an infirmary is strictly
regulated by the Department of Public Health and Addiction Services, this regulation does
not address the confidentiality issues raised by the School. Indeed, pursuant to
Connecticut statutes, a licensed physician must maintain a minor’s confidentiality in
relation to treatment for sexually transmitted diseases and the receipt of (or request for) an
abortion. While constitutional mandates may dictate the need to maintain the
confidentiality of reproductive health information, there is no statutory requirement to
maintain such confidence, and, as a private institution, the School is not obligated to
protect the constitutional rights of its students. Best practice, however, may dictate
maintaining a student’s privacy relative to reproductive health issues. A discussion of the
relevant issues and the specific questions asked in relation to the School’s handbook
follows.
A.
Operation of an Infirmary and Confidentiality of Reproductive Health
Information
Pursuant to the Regulations of Connecticut State Agencies (“RCSA”) § 19-13-D1,
an infirmary is “a health care facility operated by an educational institution, which
provides evaluation and treatment services for routine health problems and provides
overnight accommodations of limited duration for students, faculty and employees . . . .”
Such an institution must be licensed and operate pursuant to RCSA § 19-13-D43a. Among
other obligations imposed by the Department of Public Health and Addiction Services
through this regulation, an infirmary must maintain all medical records in a confidential
manner for a period of seven years after the student or employee leaves the educational
institution, and implement a policy concerning the confidential treatment of all medical
information. See RCSA § 19-13-D43a.
While the regulation of infirmaries does not dictate the boundaries of
confidentiality for student health information, various state statutes provide guidance on
this issue.1 Importantly, because the infirmary may be a “covered entity” under the Health
Insurance Portability Accountability Act (“HIPAA”), it is most likely required to comply
with the privacy and security standards set out by that law. However, under HIPAA, the
federal government refers to the states with respect to the rights of minors as they relate to
privacy.2 Consequently, we must look to state statute and case law.
1.
Abortion
Connecticut General Statutes § 19a-602 provides that the “decision to terminate a
pregnancy prior to the viability of the fetus shall be solely that of the pregnant woman in
consultation with her physician.” This statute makes no distinction between an adult’s
ability to obtain an abortion and a minor’s ability to obtain an abortion. However, § 19a601 requires that, “[p]rior to performing an abortion upon a minor,” a physician or
counselor must, among other things, (1) explain to the minor that she may withdraw her
decision to have an abortion; (2) explain to the minor her alternative choices to having an
abortion; and (3) “[d]iscuss the possibility of involving the minor’s parents, guardian or
other adult family members in the minor’s decision-making concerning the pregnancy . . .
.” For purposes of this statute, a minor is anyone under the age of sixteen. Conn. Gen.
Stat. § 19a-600.
1
A thorough review of all relevant sources, including case law, statutes and regulations, was conducted to
determine whether the operation of an infirmary required certain confidentiality of student health
information. Further, Joan Feldman, the chair of Shipman & Goodwin’s Health Care Practice Group, was
consulted on this matter and was unaware of any infirmary-specific laws or regulations.
This information was obtained from Joan Feldman, the chair of Shipman & Goodwin’s Health Care
Practice Group.
2
2
While § 19a-601 does not explicitly mandate that a minor’s obtainment of, or
request for, an abortion remain confidential from the minor’s parents, confidentiality is
most likely implicit in the statute. Not only is the decision to obtain an abortion solely in
the discretion of the minor, but the statute requires a physician or counselor to encourage
the minor to involve her parents. Logically interpreting the statute, the legislature would
most likely not have required the physician or counselor to encourage the involvement of
the minor’s parents if the physician or counselor were permitted to inform the minor’s
parents without her consent.3 See Walter v. Servs. for the Blind, 63 Conn. App. 1, 8 (Conn.
App. Ct. 2001) (“In construing a statute, common sense must be used, and the courts will
assume that the legislature intended to accomplish a reasonable and rational result . . . . A
statute . . . should not be interpreted to thwart its purpose.” (internal quotations and
citations omitted)).4
Assuming confidentiality is implicit in the statute, it is unclear who must maintain
this confidentiality. The statute specifically identifies physicians and counselors as those
who must provide counseling prior to performing an abortion. For purposes of § 19a-601,
a counselor is a psychiatrist, licensed psychologist, licensed clinical social worker, licensed
marital and family therapist, ordained member of the clergy, licensed physician assistant,
licensed nurse-midwife, certified guidance counselor, licensed registered professional
nurse, and a licensed practical nurse. See Conn. Gen. Stat. § 19a-600(1).
While others may fall within the confidentiality requirement, it can be safely assumed that
a physician must maintain confidentiality relative to a minor’s decision to have an
abortion, no matter where that physician practices medicine. 5 The fact that the physician
practices within a private school setting is most likely irrelevant to this analysis. A further
discussion of confidentiality relative to pregnancy follows below.
Given this statutory interpretation, the licensed physician practicing medicine
within the School’s infirmary should keep confidential from the minor’s parents the
3
A review of the relevant legislative history was not conducted. Should a more in-depth discussion of these
issues be requested, I would be happy to review the history of the statutes presented in this memorandum.
It may also be argued that the legislature’s omission of any confidentiality reference in the abortion statute
prohibits such a reference from being implied, especially considering that confidentiality is explicitly
required for the treatment of sexually transmitted diseases under Connecticut General Statutes § 19a-216.
See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 357 (2005) (“[W]hen the legislature uses
certain language in one part of the statute and different language in another, the court assumes different
meanings were intended.” (internal quotations and citations omitted)). This interpretation is unlikely given
that it produces an illogical result and that the treatment of sexually transmitted diseases appears in a
different statute than abortion.
4
5
While there is no case law interpreting the abortion statute, practitioners in the area agree that
confidentiality is required. In conducting this research, the following people were consulted: Cheryl Resha,
Health Services Nurse at the State Department of Education; and Jay Sicklick, Director of the Medical-Legal
Partnership Project at the Center for Children’s Advocacy.
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minor’s request for an abortion and/or decision to obtain an abortion. Suggested language
notifying parents of this statutory requirement is presented in the last section of this
memorandum.
2.
Sexually Transmitted Diseases and HIV/AIDS
Connecticut law provides that a licensed physician may examine and provide
treatment for venereal diseases for a minor without the consent of the minor’s parents.
Conn. Gen. Stat. § 19a-216. Further, “[t]he fact of consultation, examination and treatment
of a minor . . . shall be confidential and shall not be divulged by the facility or physician,”
except for purposes of reporting the fact of the disease to the appropriate health authorities,
and reporting the case of any child under the age of thirteen to the Department of Children
and Families. Id.
Similarly, a licensed physician may examine and treat a minor for HIV or AIDS
without the consent of the minor’s parents if the physician believes that notification of the
parents will result in the denial of treatment or that the minor will not seek treatment if his
or her parents are notified. See Conn. Gen. Stat. § 19a-592. Confidentiality is only
required, however, when it is requested by the minor. Id.
Because “minor” is not defined in § 19a-592 or § 19a-216, a minor is anyone under
the age of eighteen. See Conn. Gen. Stat. § 1-1d (“Except as otherwise provided by statute
. . . the term[] ‘minor’ . . . shall be deemed to refer to a person under the age of eighteen
years.”). Moreover, both §19a-592 and §19a-216 provide that the minor receiving an
examination and/or treatment “shall be personally liable for all costs and expenses for
services afforded him at his request under this section.”
Accordingly, pursuant to state statute, the licensed physician operating the
infirmary at the School is required to provide confidential treatment for sexually
transmitted diseases and HIV/AIDS. Moreover, the School may, but is not required to,
charge students for these services separately from the general medical charges imposed
upon their parents. Suggested language notifying parents of this statutory requirement is
presented in the last section of this memorandum.
3.
Pregnancy
The law provides little guidance concerning the confidentiality of reproductive
health care (other than that described above), and specifically pregnancy. No Connecticut
statute mandates the maintenance of confidentiality for reproductive health information of
minors. While a minor has a constitutional right to obtain birth control, gynecological
examinations, condoms and an abortion without parental consent, the United States
Supreme Court has not addressed whether medical and/or school personnel must maintain
the minor’s confidence relative to these issues. See e.g., Hodgson v. Minnesota, 497 U.S.
417, 435 (1990) (citations omitted) (“[T]he constitutional protection against unjustified
state intrusion into the process of deciding whether or not to bear a child extends to
pregnant minors as well as adult women.”).
4
Recent lower court decisions have addressed confidentiality in the public school
setting; the majority of these cases rely on constitutional grounds to permit schools to
release pregnancy-related information to a minor’s parents. In a case out of the Eastern
District of New York, for example, the district court upheld a school policy requiring
school staff to inform parents of a student’s pregnancy if the student refuses to inform her
parents herself. See Port Washington Teachers’ Ass’n v. Bd. of Educ. of the Port
Washington Union Free Sch. Dist., No. 04-CV-1357, 2006 U.S. Dist. LEXIS 1904
(E.D.N.Y. Jan. 4, 2006). In so holding, the district court noted that the parental
notification requirement did not infringe on the minor’s fundamental right to carry her
pregnancy to term. Id. at *21-22. But see Arnold v. Board of Education, 880 F.2d 305,
314 (11th Cir. 1989) (“The decision whether to seek parental guidance, absent law to the
contrary, should rest within the discretion of the minor. As a matter of common sense, not
constitutional duty, school counselors should encourage communication with parents
regarding difficult decisions such as the one involved here.”).
While this recent case law may prove instructive in the public school setting,
private schools are not state actors and thus not constrained by constitutional requirements.
See Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (“That a private entity performs a
function which serves the public does not make its acts state action.”). Indeed, absent
constitutional restrictions, the School’s concerns relative to pregnancy should focus on
liability and discrimination. More specifically, the safety and welfare of the minor student
may warrant maintaining confidentiality in some cases, while it may warrant revealing the
student’s confidence to the parents in other circumstances. A student may, for example, be
either more or less likely to seek medical attention if her parents are notified. Moreover,
although the School is most likely not open to constitutional claims, it is still restricted in
its actions by Connecticut’s discrimination laws. Should the School inform a female
student’s parents of her pregnancy, but not notify the parents of the male student involved
in the pregnancy, the School could theoretically face a claim of discrimination.
Given these important and sensitive issues, and the lack of legal guidance, it is
recommended that the School provide itself flexibility with regard to disclosure of
pregnancy-related information. The importance of maintaining the confidence of minors
under certain circumstance cannot be emphasized enough. However, the safety and
welfare of the minor may trump the need to maintain the minor’s confidence. Suggested
language for inclusion in the School’s handbook and medical consent form is provided in
the last section of this memorandum.
4.
Jurisdiction
The question was raised as to whether these Connecticut laws apply to students at
the School who have a permanent residence outside the state. With regard to sexually
transmitted diseases, HIV/AIDS, and abortion, the statutes explicitly state that the licensed
physician or counselor providing the treatment or counseling must maintain confidentiality
(or encourage the involvement of parents, in the case of abortion) under the conditions
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indicated in each specific statute. See Conn. Gen. Stat. §§ 19a-216, 19a-592, 19a-600, and
19a-601. Thus, it does not appear relevant whether the minor has a permanent residence in
Connecticut or another state.
B.
Recommended Handbook Language and Additional Issues
The School has requested language to insert into its school handbook and medical
consent form to notify parents of the School’s policy, considering its legal requirements,
relative to confidentiality of student health information. The language provided by the
School is as follows:
In the event of pregnancy or sexually transmitted disease, in accordance
with state law, which includes assurances of privacy and confidentiality
for students, the School’s Medical Director will provide our students the
best possible care and will encourage students to share their condition with
their parents. However, should the student choose to insist on her/his
confidentiality, consistent with the priority of providing care, the Medical
Director will respect that student’s confidentiality and provide the
necessary care for prevention, including contraception, and treatment of
pregnancy and sexually transmitted disease.
Given the above discussion regarding Connecticut law, and the lack of clarity
concerning the confidential nature of reproductive health information of minors, it is
recommended that the language submitted by the School be modified slightly.
Specifically, it is recommended that the school be more explicit as to its maintenance of
confidentiality for sexually transmitted diseases and abortion, and include the ability of
school officials to inform parents of pregnancy issues if needed to protect the safety and
welfare of the minor. Further, it is recommended that the suggested language be included
in both the school handbook and the medical consent form signed prior to admission.
The recommended language is as follows:
In the event of pregnancy or that a student seeks medical care relating to
a sexually transmitted disease, including HIV/AIDS, the School’s
Medical Director will act in accordance with state law, which includes
assurances of privacy and confidentiality for students, and will provide
our the students the best possible care and will encourage the students to
share their her/his condition with their her/his parents. Further, the
Medical Director will provide a student with reproductive health care,
including but not limited to contraception and treatment of pregnancy,
as requested by the student and will encourage the student to share such
request and treatment with her/his parents. However, should the student
choose to insist on her/his confidentiality, consistent with the priority of
providing care and state law concerning counseling related to abortion,
the Medical Director will respect that student’s confidentiality and provide
the necessary care, unless the Medical Director determines that the
student’s health or safety are at risk. for prevention, including
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contraception, and treatment of pregnancy and sexually transmitted
disease. The School believes it is critical to encourage students to obtain
necessary medical care. While reproductive health care issues can be
difficult and sensitive to discuss, the School believes that the provision of
confidential health care services to its students may serve to encourage
students to seek medical care when needed.
The final issue to be addressed is whether students at the School should be required
to sign this provision of the school handbook and medical consent. As a best practice and
for the safety of the students’ health, it is recommended that students be informed in some
manner of their rights to confidentiality from their parents of certain health information.
Further, it is recommended that parents and students, whether minor or adult, sign that they
have received and read the handbook upon admission to the School. While there is no
legal requirement for such signature, it may assist in protecting the School from liability
related to the maintenance and/or revelation of student health information related to
pregnancy and sexually transmitted diseases.
504394 v.01
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