It’s that time of year – the end of August. If you are the parent of a college student,
you’ve either already moved them into their dorm rooms or apartments, or will
be doing so by the end of next week. The
move to college takes a lot of planning – your college student has had to make
sure they have what they need – clothes, school supplies, bedding, computer, refrigerator,
etc. You’ve probably helped them make sure they have everything they need to be
ready for the upcoming semester. But
have you thought of everything? What would
happen if your child became ill or was injured, and you needed to contact
them? What if the worst happened and
your student was missing? How would you get the information you need to help
them, or to find them?
The problems I have just mentioned are exacerbated
by the fact that most freshmen in college either are, or will become 18 years
old. In other words, they are legally an
“adult.” Therefore, if you as a parent are to have the authority or ability to
get the information you need to help your child in need, your 18 year old child
needs to give you the legal authority to act on their behalf should they become
disabled and unable to communicate.
Why? Because health care
providers and the colleges your child attends consider your child an adult when
it comes to decisions relating to health care and school records. Add to this the ramifications of the Health
Insurance Portability and Accountability Act (known by its infamous acronym
“HIPAA”), and health care providers become loathe to disclose any information
about your son or daughter.
This shouldn’t happen. The HIPAA privacy regulations offer
exceptions which give health care providers some “common sense” discretion to
disclose “personal health information” to “a family member, other relative, or
a close personal friend.” (45 CFR 164.510(b)). This rule goes on to specifically
allow a provider to use its professional judgment and experience with common
practice in deciding whether and what to tell such persons.
But many providers overreact, and interpret HIPAA’s
privacy protections as an absolute barrier to all disclosure. This leads to absurd results. For example, a
client told me about a college sophomore who traveled to an “away game” for the
school’s hockey team. This young lady
was somehow injured at the game, and transported by ambulance to a local
hospital. The student’s parents were
notified that their daughter had been hospitalized, but no one was willing to
disclose where she had been taken, or the extent of her injuries. Those parents spent a sleepless night
worrying until their daughter contacted them the next morning, fortunately not
seriously injured.
How can parents avoid this? By having their college aged children execute
a durable power of attorney (or “POA” for short). This is a legal document that permits the
child to appoint a parent (or other person) as agent to carry out certain
functions and make decisions in their place. It is a simple form that is “fill
in the blanks” and signed – no court order or other action is needed (though I
do recommend consulting an attorney -- the instructions in the body of the
document should be tailored for the specific situation). Under Illinois law, a Durable Power of
Attorney for Health Care permits your child to appoint you or your spouse as an
agent while expressing their personal wishes about health care decisions in
the event they become incapacitated. In addition, I recommend executing a
Durable Power of Attorney for Property to cover issues relating to school
records (e.g. in the event of an emergency when the child is unavailable or
missing, the school clearly understands the child’s intent to allow information
to be given to his/her parents). Besides HIPAA, there is another federal
statute known as FERPA (the "Family Educational Rights and Privacy Act"), which
protects the privacy of student education records. Most colleges are proactive in providing
students with FERPA waiver forms to allow parents access to school records, but
careful drafting of the POA for Property can expressly give parents access to
any school records or be able to talk to any professor or other college
employee in order to get critical information about your child.
Some students might balk at the idea of their
parents having access to their records, but these documents can be personalized
to only allow such access in the event of an emergency. I have personally assured my own college aged
children of this limitation, and have respected those boundaries. But the
usefulness of this kind of planning can go beyond emergencies. For example, if
a student has a chronic health problem or a disability, the parent, as an agent
under a POA, can be more involved with on-campus health services and the
student’s instructors to monitor progress.
While the exceptions to the HIPAA privacy
regulations should allow parents to receive critical information about the
medical treatment of their adult college-aged children, a properly worded and
executed power attorney gives parents the specific, direct authority to
overcome the misinterpretation of privacy rules. I recommend that parents of
college aged children arrange to have their kids execute the appropriate powers
of attorney as they begin school in the fall, and have copies filed with the
appropriate authorities and health care providers on campus. Then, they can head off situations like the
one I described, and be assured that whatever happens, they will be “in the know”
regarding their child’s status while away at college.
