Friday, April 23, 2010

FERPA, HIPAA and Becoming a Grownup

We've all heard the term "age of majority", which is commonly taken to mean the age at which a young person becomes an adult, with all the rights and responsibilities that go with that status. But adulthood isn't a legal door that you walk through, emerging on the other side immediately. It's more like a tunnel that you pass through over a period of time, emerging several years later as a full adult, but not reaching full adulthood until you have passed all the way through.

The laws that govern the journey are sometimes established by individual states, since many milestones are determined by state law. For example, in Kansas, young people can get a "farm permit" at age 14 that allows them to drive in rural areas, while in New York and many other states, a full license is not available until age 18. Marriage, too, is governed by state laws. Most states set the age for marriage without parental consent at 18, but Mississippi requires that the parties be 21.

Federal law governs other important areas. Voting at age 18 was established by the Twenty-Sixth Amendment to the Constitution in 1971. The various branches of the U.S. military set the age for enlistment, which is 17 with parental consent and 18 without it.

Perhaps most relevant for students are two federal laws that govern health and education privacy, the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA). FERPA was enacted and became effective in 1974 and was designed to make educational records accessible to parents and students and to give parents and students some control over how and to whom educational records were to be released. FERPA also provides that the right to a student’s records transfers from the parent to the student when the student turns 18 or enrolls in college, whichever comes first. This can be particularly difficult for a parent of a student with a disability, who may have been even more involved in school matters than parents of students without such special concerns.

However, even parents of college students still have access to their child’s school records in certain circumstances. Most broadly, FERPA permits high schools (for high school students who have turned 18) and colleges to provide information to parents if the student is a dependent on his parents’ tax returns. In addition, disclosure to a student’s parents is permitted when necessary to protect the health and safety of the student or other individuals, and parents of college students who have not yet turned 21 can be informed if the student has broken any law, or violated any rule or policy of the college restricting use or possession of alcohol or drugs. Student consent can also be used to override the restrictions on information imposed by FERPA. Students who work with their college Office of Disability Services can sign a release allowing their parents ability to converse via phone, email, in person with a disability services officer regarding their progress. It should be stressed that nothing in these rights FERPA extends to parents requires that a school provide parental notification. It simply allows the school to do so if they decide it is appropriate without running afoul of federal laws. In addition, FERPA allows for access to disability related information if it is within a faculty or administration member’s educational need to know.

HIPAA covers a wide range of medical and insurance issues, but the part that impacts families is the 1996 Privacy Rule, which is much like FERPA in its approach. This section of HIPAA covers how and when personal health information (PHI) may be released by a medical professional or hospital. It also includes a provision that transfers the right to PHI from parent to child at age 18. Families should discuss how they want medical information to be shared and make sure that is reflected in the instructions they give to their doctor.

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