Each fall, excited students and their nervous parents participate in the tradition of college enrollment. Some students continue to live at home as they start their freshman year, while others move far from home.
In addition to the numerous logistical details of signing up for classes and getting moved into dorm rooms, there are other preparations that parents and students may overlook. Here is the issue: an eighteen-year-old high school graduate who is just starting college is legally an adult, but they may still need significant assistance from their parents. But once a child turns eighteen, certain laws dictate that their student and medical records cannot be turned over to another person—even their parents—without permission. So what if a student is struck by a medical emergency? That student’s parents may be hindered in their ability to access information necessary to support their child unless they have put certain legal tools in place beforehand.
Two key laws apply in this context: the Health Insurance Portability and Accountability Act (commonly referred to as HIPAA), and the Family Educational Rights and Privacy Act (FERPA).
Under HIPAA, a person’s medical information and records is protected from disclosure to others unless certain exceptions apply. For a parent trying to access the information of an adult child who is a medical patient, this is only permitted under a few circumstances:
- If the patient consents
- If the patient has a chance to object but does not
- If the patient is not present or incapacitated and the medical care provider determines that disclosure is in the best interests of the patient
- When there is a threat of serious harm to the patient or others, or
- The person seeking the information is designated as a personal representative of the patient
While HIPAA protects medical and health information from disclosure, FERPA protects educational information such as college schedules and grades. Under FERPA, a parent may not access an adult student’s records unless the student consents, or the parent can establish that the student is a dependent of the parent, which generally means that the student is being claimed as a dependent on the parent’s tax return.
So, under these two laws, the parents of an adult student can in certain circumstances still get access to the student’s information and records, but certain legal tools can provide a way to ensure more direct access without having to negotiate the requirements of these laws and the regulations that implement them.
Here is a quick round-up of the key tools that parents should consider before their child heads to school:
Durable Power of Attorney
This is a document that your student can sign to assign you as the parent the ability to act in their place and receive any documents or information that the student would be able to access. A durable power of attorney is a tool commonly used in estate planning packages by which a person may empower another to handle their affairs as they near the end of life, but can be just as useful for someone just starting out who needs a parent’s assistance to navigate the various tasks of adult life. You can read more about powers of attorney here.
Health Care Directive (or Health Care Power of Attorney)
This is a more specific tool than the durable power of attorney. It is focused on medical care and allows your adult student to empower you in the event of their incapacity as the parent to access all necessary medical information and direct the student’s medical treatment when necessary. If desired, the health care directive also can include statements regarding the student’s wishes regarding lifesaving treatment. That is, the student can specify what extraordinary measures should and should not be taken to save or preserve their life.
HIPAA Authorization
A health care directive typically will include provisions granting a designated person access to HIPAA protected health information in the event of the incapacity of the person signing the directive. The HIPAA Authorization is different in that it allows a designated person, such as a parent, to access such information at any time, not just when the student is incapacitated. The parent can present this authorization to medical care providers or insurers to access information about their student’s medical condition and treatment.
Durable Power of Attorney for Education
This is another more focused document that allows the student to grant another person such as a parent access to information about them that is compiled and stored by their college or university. Many schools have their own forms that perform a similar function, but having a Durable Power of Attorney for Education will allow for access to the student’s information at any school they attend, even if they have not filled out a school-specific form.
The tools described above are adapted from documents typically found in an estate planning package. Thus, attorneys whose practice normally focuses on serving clients preparing for end-of-life decisions are in fact well equipped to help parents whose children are just entering adulthood. Contact the Law Office of Levi Jones if you would like to discuss how you can use these tools to help your college student get started on the right foot.