By: Michael B. Schwartz
It’s hard to imagine what could be more frightening to a parent than to hear his or her child has experienced a medical emergency. But what if your child’s doctor refuses to speak with you about your child’s illness or injury? Fear of the unknown is often more terrifying than the truth, and the feeling of helplessness can be crippling to a parent.
Unfortunately, this situation is all too common for parents with college-age children; however, parents can easily avoid this issue with proper planning. In Florida, the age of majority is eighteen. Once your child turns eighteen, he or she is an adult under the eyes of the law for most purposes, including the power to control access to his or her private health information.
In 1996, Congress enacted the Health Insurance Portability and Accountability Act (HIPAA). The Act contains a privacy provision that restricts health care providers from providing their patient’s health information to other individuals, including family and friends. Once a child turns eighteen, he or she is legally an adult according to HIPAA. Access to his or her medical information is restricted to those persons who have the patient’s permission. This is true even if the child is still under his or her parents’ health insurance plan, and even if the parents are still footing the bill.
The HIPAA privacy rule can pose a particular problem for parents with college-age children (and even high-school-age children living under the same roof, if they are eighteen). If the college-age child suffers an illness or injury and becomes incapacitated or unable to communicate, the child cannot authorize access to his or her health information. This can leave family members and loved ones in the dark as to the patient’s condition and course of treatment.
This issue has become even more prevalent today in caring for children of the millennial generation. Compared with their predecessor generations, millennials are more apt to remain financially dependent upon their parents and continue living with them after turning eighteen. Further, under the Affordable Care Act, parents can keep adult-children on their health insurance policies until they turn twenty-six years old.
Fortunately, you can easily solve this issue with proper planning prior to a medical emergency. Your college age-child simply needs to complete and sign a form authorizing the disclosure and use of protected health information to you. Your child’s HIPAA authorization form might include: the authority to disclose and use protected medical information, the name of the person given authority, the effective period for authorization, the extent of the authorization, and the name and signature of the person granting authorization. Your child can also choose to exclude certain highly sensitive information from disclosure, such as mental health records, sexually transmitted disease history, and alcohol/drug abuse treatment records.
What Parents Can Do?
The attorneys of Trenam Law’s Private Client Services Group routinely prepare HIPAA authorizations for our estate planning clients. We typically include the HIPAA authorization in a document referred to as a “Designation of Health Care Surrogate.” In this document, the client can designate a person, called the surrogate, to make medical decisions on the client’s behalf in the event the client becomes incapacitated or otherwise unable to make his or her own medical decisions. We include a HIPAA authorization provision in our designation of health care surrogate documents, so that the surrogate can effectively exercise his or her power in making medical decisions for the client-patient. Preparing this document for the client’s college-age child follows the same process, but the child must acknowledge that the document reflects his or her wishes by signing it.
Unless otherwise directed, a copy of your child’s designation of health care surrogate or HIPAA authorization is equally as valid as the original. It might be wise for you to scan your document(s) to your computer and upload the file to your smartphone. In the event of an emergency, you can then quickly present or email the authorization to your child’s medical provider.
For more information about drafting such a document for you or your college-age child, please contact your lawyer. If you are not currently a client of the firm, we welcome you to contact one of the lawyers from Trenam Law’s Private Client Services Group.
