Legal and Medical Checklist for College

A family member recently reached out for help; her 18-year-old daughter is leaving for college at the end of August and she wanted to know if there were any documents she should have her daughter sign that would make both day-to-day and emergency situations easier for them both. In addition, the family lives in one state and the college is located in another. She wasn't sure if that made any difference. I've always know that this mom was a smart woman, and her excellent questions and concerns just confirmed that. This is what I advised:

HIPAA
The federal law governing privacy of medical records applies in all states and would mean that the medical records of this college freshman would not be accessible to her parents. In addition, the student's doctors could not discuss her medical condition with her parents, even in an emergency. I suggested that the parents speak to the young woman and that they should discuss the benefits (and privacy concerns) of having her execute a general HIPAA Release Form allowing her doctors to speak with her parents. In addition, many student health services have their own forms and, if the student agrees, she should execute that form as well.

FERPA
While we are on the subject of federal laws, FERPA, which protects the privacy of student records, gives students over 18 and those in college the sole right to their educational records. As we noted in a post back in 2010  (it's sometimes hard to believe we have been blogging for ten years and have posted almost 1100 blog posts!) FERPA has numerous exceptions, but we advised that our family member should have her daughter execute a FERPA release form (often available at the office that generates student grades/records) to allow her parents to access her educational records. In addition, students who are registered with their campus Office of Disability Services should check to see if there is a separate form that is used by that office.

HEALTH CARE PROXY 
This form, which can have different names in different jurisdictions, would allow the student's parents (or anyone else she designates) to make medical decisions when she is not able to do so. This is different than just medical information (covered by the HIPAA release) but is used for such serious situations as where someone is unconscious or so ill or injured that issues of life support come into play. I urged that the parents and student have a serous conversation about this form and that all involved understand its purpose and the wishes of the student executing it. Sometimes, this form is prepared in connection with a document called a Living Will, which is a written expression of how the party executing it feels about issues like artificial respiration and tube feeding. Note that this latter document is advisory, while the Health Care Proxy is a binding authority. Different states have different forms for this document, so I suggested to my relative that she search online for forms from reputable sources in each relevant state and make sure that the form they use covers the requirements for both state of residence and the state where the college is located. In general, these forms need to be witnessed. A form from the New York State Department of Health, fillable  and with a lengthy Q and A section, is available online.

This forms above will be sufficient for most situations, but some families also may choose to have their student execute a Durable Power of Attorney, a form that allows the person who signs it (here, the student) to give someone authority during the signer's lifetime to handle financial, business, banking, and other matters. The form can be useful if the student has assets or an interest in property. Different states use different forms and these forms can be a bit confusing to create. You may want to speak to an attorney if your family circumstances warrant creating this document. Likewise, most students this age neither need nor have a Last Will and Testament, but special situations may make this document important and now would be a good time to have one prepared by an attorney.

With all the paperwork completed, students and their families can concentrate on much more enjoyable issues, like decorating their dorm room, meeting new roommates, and hitting the college store for their stock of mugs, banners, and t-shirts. Here's to a great start to college!

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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