If you are a parent sending your child off to college this year, make sure you are prepared. In the flurry of packing, parents must not overlook obtaining advance consent from their children so they can have access to important health and educational information—or risk begin left out in an emergency.
Once a person turns 18, the law presumes that they have the capacity to make their own medical, personal, and financial decisions, and they gain strong legal privacy rights, including under the Health Insurance Portability and Accountability Act (HIPAA), which covers all medical information, as well as the Family Educational Rights and Privacy Act (FERPA), which covers all educational records. Under the privacy provisions of both laws, providers may disclose information only to the subject individual and those whom they legally designate—except in accordance with limited exceptions. Both health care providers and institutions of higher education take these rules extremely seriously, and parents are frequently dismayed to find that these entities refuse to provide them with any information regarding their young adult child.
The unintended consequences of these privacy provisions take on particular urgency in the case of a medical emergency. Your child may be temporarily incapacitated and therefore unable to provide consent to disclose information. Parents must avoid the possibility of being unable to access their child’s medical information and/or make medical decisions in accordance with their wishes in an emergency.
We advise clients to have their young adult children execute a Power of Attorney and advance directives, including a Living Will and Health Care proxy. These documents enable their parents to demonstrate to health care providers that they have the right to pertinent information. These directives remain in place unless and until they are revoked. Parents need to know that the young adult has the power to revoke these directives at any time, or to designate a different individual (but having it in place is better than not).
Parents also are frequently surprised to find that their child’s college or university will not disclose information directly to the parent, without authorization. The FERPA provides strong protections regarding access to educational records, and preventing disclosure to unauthorized persons. For children under the age of 18, FERPA rights belong to the parents. For adults 18 and above, FERPA rights belong to the student. However, many educational institutions do not draw the distinction at age 18 – in particular, colleges cite FERPA when restricting information to all parents regardless of the age of the student. For students under 18, parents can assert their rights under FERPA with the colleges. However, for students over 18, students must provide authorization before colleges will disclose any information to their parents – grades, disciplinary records, or even billing information. FERPA provides that colleges may release their student’s information to parents without a written authorization, if the parents can prove that their child is financially dependent. Yet, many colleges do not recognize or understand this exception. Most colleges do, however, have a mechanism for students to authorize their parents to receive some or all information, in addition to the student.
To ensure broader coverage if your child is incapacitated and you need information quickly, an attorney can also prepare a Power of Attorney document. Be aware that many standard forms for Power of Attorney do not address educational records. Like the advance directives, these documents, once executed, remain in force unless and until they are revoked.