Discovering adulthood: Schools legally can’t release medical information for students 18 and older without written consent

The most recent picture of the Hogate family taken for Christmas last year with Kevin Hogate (left), before he died of sudden cardiac arrest at college. Photo courtesy of Scott Hogate.

Chapman alumnus Scott Hogate learned the hard way that if a student does not sign a medical directive releasing information to his parents in a medical emergency, his parents won’t be contacted.

Hogate’s son Kevin suffered a cardiac arrest at the Savannah College of Art and Design on April 6 and was taken to a hospital where he was eventually pronounced dead. The Hogates weren’t alerted of the incident until a doctor called to tell them their son was in critical condition.

Kevin’s school could not contact his parents after his cardiac arrest because Kevin did not complete a medical directive form consenting that his parents could obtain information, Hogate said.

Hogate and his wife, Kate, are now on an informational crusade to alert college students and their parents to the importance of signing medical directives, to eliminate the risk of ambiguity in emergency situations.

Many parents and students are unaware that privacy laws such as the Family Educational Rights and Privacy Act prohibit parents from accessing information about their children in a medical emergency once the children become adults.

If a student over the age of 18 does not sign documents such as a health care directive, a Health Insurance Portability and Accountability (HIPAA) waiver, and durable power of attorney, their parents are not entitled to any of their medical information – even in a dire emergency.

It is not the school’s responsibility or obligation to offer directives said Stacy Sadove, a partner with the Law Firm of Fitzgerald & Sadove.

“They don’t have a duty under the law to have to provide information or to have to get parents to sign these documents,” Sadove said.

Hogate and Sadove believe schools should do a better job informing parents that unless a medical directive form is completed, they will not have the right to obtain information about their student in these types of situations. An ideal time to have this discussion would be when a student is admitted to a college, Hogate said.

The California Advance Health Care Directive is broken into five parts.

Part one requires the student to name “an agent” who will be given the authority to make medical decisions for the student if a doctor decides they are either unable to fully comprehend the ramifications of their medical choices or if the student is unconscious and cannot communicate.

Part two consists of the student’s written requests regarding their preferences in “prolonging” their life.

Part three states the student’s preference on organ donation. Part four designates the student’s preferred physician. And part five completes the directive with the student’s signature and witnesses to ensure the document’s legitimacy.

Information on the directive form is provided for students at events such as Discover Chapman Day, Preview Day, and during Orientation, according to the Director of the Health Center Jacqueline Deats. Health care directives are mentioned but are not as publicly advertised.

Schools must be cautious about what they involve themselves in to an extent, Sadove said. Schools do not want to put themselves in a position where they are liable or break confidentiality, but failing to notify parents about a student in distress could also create a situation in which the school might be sued, Sadove said.

At Chapman, health practitioners can speak with parents directly only if the student provides consent by written form or verbal confirmation, according to Deats.

“An emergency contact is not a legal form, it is a form for them to have on file to have contact information for someone else. Schools don’t have the right to share any information unless there is an active directive on file saying they can,” Sadove said.

“The health center is not looking to keep parents out. They want the patient or the student to have the support of the family, especially when the student is asking,” Deats said.

Schools face each medical situation by gauging the level of liability, Sadove said. This approach ensures schools can release information without breaching privacy laws, erring on the side of caution. In cases where a student’s mental health is questionable, the appropriate course of action which can include continuous involvement of a special needs coordinator, outside counseling and parent involvement, will sometimes be overlooked, Sadove explained.

For non-urgent yet serious issues, Deats will go to the Dean of Students, Jerry Price, to seek advice before making any major decisions, she said.

“Intoxication is something that a lot of students don’t want their parents to find out [about] so I think that’s what’s different for college settings,” Deats said. “Other things, like suicide attempts, are really sensitive,” Deats continued. “Parent support might be helpful but [we] can’t breach that confidentiality,” she added.

Parents are often unaware this medical directive needs to be completed, Deats continued.

“For a lot of parents, it’s not necessarily on their check-off list, until an incident happens. [The consent] form could do nothing under the state of law because that student could sue us for breach of confidentiality. It can’t be a blanket medical form unless it’s the healthcare directive. And that’s just according to [the] law,” Deats said.

Unless a parent specifically inquires about this legal documentation, health professionals at Chapman do not endorse or even advise parents to get health care directives for their child, Deats said.

Despite schools not promoting medical directives forms, some students are finding information on their own.

“My youngest daughter who is now at Harvard came to me because she had read something in the popular press, that said if she were in medical distress that we would not have access to her medical care because she is over the age of 18,” said Susan Paterno, the English Journalism Director and professor at Chapman. “She came to us and said you need to do this. We didn’t believe her, but then I found out she was correct and decided we need to [get the forms completed],” Paterno said.

Paterno utilized her Hyatt Legal plan, a part of her employee benefits at Chapman, to hire an attorney to help draw these medical directives last August. Paterno wanted to ensure that she could help her daughter in a situation where she had to sort through a medical emergency while enrolled at Harvard.

Schools should move beyond merely mentioning medical directives and hold clinics where students can have the chance to learn about medical directives, have direct access to them or be provided with a way to access them through the school’s website, Sadove said.

This would ensure that the forms are signed properly and are provided to the school, she said.

Hogate’s goal is similar. He wants colleges to provide medical directives during enrollment so colleges are legally able to contact parents and guardians should a child have a medical emergency.

Hogate has been working with David Moore, Assistant Vice President of Legacy Planning at Chapman, to bring his story to the rest of campus. His hope is that Chapman can come up with a strategy to implement change by the end of November, he said.

Madison Taber and Leslie Song

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