TN 5 (11-15)

GN 03305.005 Who May Consent

The access provisions of the Privacy Act (5 USC 552a) provide the legal authority for disclosing the personal information in our records with consent. Only the following persons may consent to disclose SSA records information.

A. Consent for competent adults

Generally, the individual who is the subject of the record may give us written consent to disclose information to a third party.

B. Consent for incompetent adults

1. Legal guardian

a. Proof of legal guardianship

If a document showing a court finding of incompetence exists for the individual who is the subject of a record, the legal guardian may sign the consent document for disclosure only when acting on behalf of the individual and not in the legal guardian’s own interest. Proof of the guardianship appointment (a copy of the court order appointing the guardian) must already exist in our records or accompany the consent document. For more information about guardianship, see GN 00502.139 and GN 00502.300.

NOTE: Guardian ad litems are not legal guardians and cannot consent except in rare circumstances.

b. Determining the “on behalf of” standard

Consider the intended use of the requested information when determining whether the guardian is acting on behalf of the individual. Use these examples only as guidance for determining if a guardian is acting on behalf of the individual:

  1. A legal guardian for a developmentally disabled adult signs the SSA 3288 on his behalf. The consent authorizes SSA to disclose medical information in the individual’s record to his residential director to assist in providing additional services. We determined that the purpose of the disclosure is on behalf of this individual and you should honor it; or

  2. An adult son, who is legal guardian for his father, signs the SSA-3288 on his behalf. Documentation indicates he is only legal guardian “of the person” and not of his father’s estate or financial affairs. The consent authorizes SSA to disclose information about the father’s benefits to the son’s bank. We determined that the purpose of the disclosure is not on behalf of the father and you should not honor it.

2. Incompetent adult

A legally declared incompetent adult may be able to consent to the disclosure of his or her own records. We will honor the consent of a legally declared incompetent adult when both of the following conditions exist:

  1. The legal guardian refuses to consent; and

  2. The interviewing SSA representative is reasonably certain that the individual is capable of making a rational decision concerning the particular disclosure.

The interviewing SSA representative must be able to establish that the person to whom we would disclose records, based on the individual’s consent, will use the information on behalf of the individual. If it appears that the disclosure will be harmful to the individual, the FO manager (or other official) may want to question the individual's capability of providing “informed consent.” If the incompetent adult is not capable of making a rational decision concerning the disclosure, send the request to OPD for processing under the guidelines of the FOIA. For additional FOIA processing instructions, see GN 03350.005J. For more information about legal incompetency, see GN 00502.005A.

EXAMPLE:

A legally declared incompetent adult claimant secures an attorney to challenge the determination that he is incompetent and provides consent for us to disclose relevant claim file information to his attorney. The claimant’s legal guardian refuses to consent to disclose any information to the attorney. The FO manager interacts with the claimant frequently, believing the disclosure would be on behalf of the claimant and would help to protect the claimant’s right to conduct his own affairs. In this example, the FO manager makes the decision to honor the claimant’s consent and disclose relevant and necessary information to his attorney, without the legal guardian’s consent.

C. Consent for minor children - Parent or legal guardian of a minor child

The word “parent” used throughout this section refers only to the birth or adoptive parent of a minor child.

A parent or legal guardian, acting on behalf of a minor child and meeting certain conditions, may consent to disclose only the minor child’s non-medical records. However, a parent or legal guardian cannot consent to disclose a minor child’s medical records, even if acting on behalf of the minor child.

1. Proof of relationship and on behalf of the minor child standards

Before we can release a minor child’s non-medical records, two conditions must be met:

  • we must have a document showing the parent or legal guardian’s relationship to the minor child (e.g., a birth record showing the parent’s name, a legal court document indicating an adoption, or the court order appointing a legal guardian); and

  • we must determine that the parent or legal guardian is acting on behalf of the minor child.

    If the parent or legal guardian’s request to provide consent meets both conditions, we may release non-medical information on behalf of a minor child.

  1. Proof of relationship. Usually, proof of relationship such as a birth record showing the parent’s name, a legal court document indicating an adoption, or the court order appointing a legal guardian already exists in our records (on the NUMI, MBR, SSR, MCS, MSSICS) or is presented with the request to disclose the minor child’s record.

    NOTE: Stepparents cannot consent to disclose a minor child’s non-medical records unless they are also the child’s legal guardian; and

  2. On behalf of the minor child. The parent or legal guardian must be acting on behalf of the minor child. This means the purpose of the parent or legal guardian providing consent for disclosure is in the minor child’s best interest and not his or her own. A parent or legal guardian who is neither living with, nor has custody of the minor child, may be an indication that the parent or legal guardian is not acting on behalf of the minor child.

    EXAMPLE 1:

    A mother submits an SSA-3288 requesting us to disclose to her subsidized rental company, the benefit amount that her 11-year-old daughter receives from her father’s Social Security disability claim. The child’s Numident record shows the mother as the birth mother. However, the mother is the non-custodial parent. The mother informs us that providing the child’s benefit amount to the rental company qualifies her for a reduced rent. Since the mother does not have custody and the child does not reside with her, releasing information to the rental company is likely not on behalf of the child. Therefore, we cannot honor the SSA-3288.

    EXAMPLE 2:

    An adoptive parent presents us with a proper consent document requesting release of her adopted daughter’s benefit information to the Maple County School District where she lives so that her daughter, who receives a Social Security benefit, may qualify for free lunch and bus tickets. A copy of the legal adoption papers for the child is already in our records. Since the free lunch and bus tickets are for the use and benefit of the child, we can honor the consent document and release the benefit information to the school.

2. Proof of relationship not in our records or on behalf of the minor child standard not met

If proof of relationship does not already exist in our records, or the parent or legal guardian cannot provide that documentation and the request does not appear to be on behalf of the child, do not release any information. Send the request and accompanying documentation to the OPD FOIA control mailbox at ^FOIA PA Officers or fax it to (410) 966-0869.

For information about parental rights, see GN 03340.025A. If the legal guardian is a guardian ad litem, see GN 03305.006B.

3. Non-medical records

A birth or adoptive parent or legal guardian may consent to disclose only the non-medical records of a minor child to a third party when he or she is acting on behalf of the child. If it is clear that the parent or legal guardian is acting on behalf of the child, honor the request and release the information. In all instances, proof of relationship must:

  • already exist in our records;

  • accompany the request; or

  • we must obtain a copy of the proof of relationship before we can disclose any information (GN 03305.005C.1. in this section).

A stepparent may not consent to disclose a minor child’s non-medical records unless he or she is also the child’s legal guardian and acting on behalf of the child. For general information about who may not consent to disclose records, see GN 03305.006.

4. Medical records

A parent or legal guardian, even when acting on behalf of the minor child, may not provide consent to disclose his or her medical records to a third party (20 CFR 401.100(d)). This is because the minor child has his or her own separate protections under the Privacy Act. However, the Privacy Act permits us to develop special procedures for disclosing medical records, including psychological records pertaining to an individual. These procedures include a process for the parent or legal guardian to ultimately act on behalf of the minor child to disclose his or medical record to a third party.

The parent or legal guardian may do so by first obtaining access to the minor child’s medical records by designating a physician or other health professional to receive the medical records. Once the parent or legal guardian receives the medical records from the designated health professional, he or she may disclose them to another party. For more information about obtaining access to a minor child’s medical records, see GN 03340.035E.

D. Minor child’s consent

A minor child may consent to disclose his or her own medical and non-medical records, at any time and for any reason, if the reviewing SSA employee is reasonably certain that the child is capable of making a rational decision to consent to the disclosure. It may be necessary for the servicing FO to interview the child or the child’s parent(s) or legal guardian to arrive at this conclusion. The reviewing SSA employee should make the decision to accept a child’s consent based on his or her own judgment that the child is capable of providing informed consent. This means the child fully understands what he or she is requesting us to disclose.

Use age 12 as a baseline for determining when a child is old enough to make such a decision. Consider these types of disclosures on a case-by-case basis to protect the rights of the child. A child under 12 years old may be mature enough to provide consent while a child over 12 may not be able to provide consent. If it appears the child cannot provide informed consent, process the request under the guidelines of the FOIA. For FOIA processing instructions, see GN 03350.005J.

E. Dual relationships

A third party may have more than one type of relationship with an individual that would permit disclosure when acting on behalf of the individual. For example, an appointed representative may also be an individual’s legal guardian. In addition, a stepparent who is also a legal guardian may consent to disclose a child’s non-medical records when acting on behalf of the child. In every instance, however, we must have proof of the type of relationship in our records or the requester must provide that proof before we can disclose any information.


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