Sending Your Kids to College . . . Are they Protected?

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.