Problem

Parents may know that their high schoolers usually see their doctor without the parent going back with the child to the examining room.  This is an indication about the eroding parental say in their child’s health care.

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 and amendments provides individuals with privacy when it comes to their medical treatment and medical records.  There is an exception for parents to be involved in their child’s medical care. 1

What if your child is 18 years old and still in high school and needs medical attention?    The student is considered an adult for purposes of HIPAA.  So the student’s medical information is protected under HIPAA.  Parents have no right to obtain information from a medical providers.  Medical providers are under an obligation to protect the student’s information regardless of the situation.

This privacy rule is enforced even though a student is on their parent’s health insurance.  Under the Affordable Care Act, parents can carry their children on their health insurance until the child turns 26.

Case in Point

In Virginia, a mother found out the hard way about this protection of medical information. 2 Her son was 18 years old and still in high school. He was in an accident and fell into a coma. She had no right to make decisions for his care. The doctors made the medical decisions without her input.

NOTE: Each state has their own laws regarding health care and privacy so some of the information in the article may not apply to North Carolina.    

Solution

So, how can a parent ensure they can help make medical decisions for their student?

This is not just important for students in high school, but college students. They are young, may be out-of-state for school and if something happens to them, their parents may be the only ones available to make medical decisions for them.

Every person should have at least the following documents:

  • HIPAA compliant medical release
  • Healthcare power of attorney
  • General power of attorney
  • Advanced directive (living will)

An individual can give consent for another to access their medical information. A proper HIPAA compliant medical release will permit another to access medical information. As an attorney, my clients sign such releases so I can request medical records for them. A student can sign a release giving their parent or someone else the right to access their medical information, including their records.

A Health Care Power of Attorney enables a person to appoint someone else to act as their medical decision maker in the event the person is unable to make decisions, such as when they are incapacitated or found incompetent. The person can direct their medical care through this document.

A general, durable power of attorney enables a person to appoint another individual to make decisions and take actions, other than medical, as selected by the signor. For example, if a person is in a serious car accident that puts them in a coma, the health care power of attorney allows the appointed person to make medical decisions and the general power of attorney would allow the appointed person to get information and pay their bills.

If you become incapacitated and need life sustaining measures, then you can direct if you want these measures or not through an advanced directive (living will).  So in the situation above, if the student had directed to withhold live sustaining measures in a living will, then when he was in the coma, the doctors would have honored the document regardless of what the doctors thought was appropriate and reasonable.

Unfortunately, even young people are injured or killed.  These are only some of the documents every person should have.  These can help avoid the parental nightmare of not being able to care for your child.

Contact Wickward Law Office, PLLC at 919-710-6691 for these and all of your estate planning needs.

 

1 Special Case- Minors:  http://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html

2 http://www.wral.com/son-in-coma-mother-shocked-to-find-she-had-little-say-in-his-medical-care/15062774/