By Marion M. Walsh, Esq.

This September, many parents have dropped their children off for the first time at college and are adjusting to a new type of parenting and advocacy.  For all parents, particularly parents of students with disabilities, the transition brings great pride, but also a significant amount of concern and worry. By taking careful steps, you can ensure that you remain an effective advocate in your new capacity.

The transition from youth to adulthood brings important legal changes that all parents must know how to navigate when continuing to advocate for your child.   When your child turns 18, absent a guardianship, he or she becomes an adult and important rights transfer.  Most states, including New York, set the age of majority at 18.  This transfer has significant legal consequences.  Absent a guardianship, which is generally not appropriate for a student attending college, an adult who is not incapacitated has the right to make educational, medical and most other decisions for himself.  So, for example, if your child decides not to seek accommodations for his or her disability, you must respect this right.

This does not mean you have no role in your child’s education, but your child is driving all decisions and you must know what to expect.   Once the student is 18 parents are no longer automatically part of the process or are even apprised of progress, unless the student chooses to include them.

As you move forward for the next year, you must keep in mind these important legal changes, particularly if your child has a disability.

Five Tips for Transitioning to the Advocate of a Young Adult

1. Assist Your Child in Advocating, but Do Not Act as the Primary Advocate.

Remember, you are no longer your child’s primary advocate.  The advocacy role must change to your child.  Thus, ensure that your student has all the information he or she needs to access needed accommodations or care. Make sure your student registers with the Office of Disabilities on campus.However, if your student chooses to not disclose a disability or seek accommodations, this represents his or her decision and you can no longer require him or her receive accommodations or services.  You should not call professors to ask for extra help for your child you cannot require your child to be hospitalized, even in a crisis, unless he or she is a danger to himself/herself or others.  Parents act as supporters but are no longer the primary decision makers for your child.

2. Understand Different Legal Obligations of College.

You must understand the different legal rights of individuals after leaving public school, as an important first step.   As most are aware, if your child has graduated or aged out of special education services,  Section 504 of the Rehabilitation Act and the Americans with Disabilities Act only protect students from discrimination, but do not require affirmative services.  If your child received special education services under the Individuals with Disabilities Education Act (IDEA),  these services only extend through the school year in which the child turns 21 or graduates  –  whichever comes sooner (although you do still retain parental rights to advocate for past services with your school district).

Significantly, after high school, colleges are no longer required to provide a FAPE.  The post secondary school is only required to provide appropriate academic adjustments as necessary to ensure that it does not discriminate on the basis of disability. The appropriate academic adjustments must be determined based on the student’s disability and individual needs.    Academic adjustments may include auxiliary aids and services, as well as modifications to academic requirements as necessary to ensure equal educational opportunity. In addition, the college does not have to make adjustments that would fundamentally alter the nature of a service, program, or activity, or that would result in an undue financial or administrative burden. A college does not have to provide personal attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature, such as tutoring and typing.

3. Ensure that Your Child Signs FERPA and HIPAA Authorizations. 

The Family Educational Rights and Privacy Act of 1974 (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protect privacy and require access to records.  These rights of access and privacy transfer to your student at 18 years of age.    FERPA rights transfer and a college will not send you records upon your request or speak to you unless your child has signed consent or another exception applies.   For example, if you can show the student is financially dependent with a tax return, the college has the obligation to share information with you.  Even with the consent, you will not automatically receive grades and records; you must request such records.  HIPAA rights transfer, and student consent will be required if the parties are seeking medical records from a physician or therapist.

Ensure that your child has signed FERPA and HIPAA waivers so you may obtain records and speak to school or hospital staff.  Make sure that you are familiar with the school’s policy.

4. Have Power of Attorney and Health Care Proxy Signed.

A Power of Attorney gives you the right to act on your child’s behalf in case your child becomes incapacitated.  This form represents an important tool to have when your child is in college and, in particular, if your child is living away from home.   In addition, it is best to have a Health Care Proxy and Advanced Directives signed as soon as possible, so that you can step in and make important medical or legal decisions, if your child becomes incapacitated at college.   Any adult must prepare for the unexpected.  You can talk to an experienced attorney about having your child sign a Power of Attorney, Health Care Proxy and Advanced Directives.

5. Remain an Involved Parent.

The transition to the parent of an adult does not mean that you cannot remain involved in your child’s life. Particularly if you are financially responsible, you have the right as a parent to set expectations and rules for how your child communicates and performs.  Parent weekends represent an important way to connect and you can join a parent networking group.  While it is unreasonable to expect direct communications with your child’s teachers, once you have the FERPA form signed, you may contact a dean about any concerns and ask for an appropriate amount of support or monitoring.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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This sexual assault trauma, commonly known as Military Sexual Trauma (MST), is specifically defined as: psychological trauma, which in the judgment of a VA mental health professional, resulted from a physical assault of a sexual nature, battery of a sexual nature, or sexual harassment which occurred while the Veteran was serving on active duty or active duty for training.

This expansion, which also pertains to Reservists and National Guard members participating in weekend drill, gives the authority to offer veterans the appropriate care and services needed to treat conditions resulting from MST that occurred during a period of inactive duty training.

The expansion is rather timely, especially in light of recent reports of the continued increase in military sexual assault cases, which we at LHFV have discussed frequently on our blog.

Every VA health care facility will have a MST Coordinator who serves as the point person for MST cases. And every VA medical center and community based outpatient clinic offers some MST-related outpatient counseling.

Currently, veterans can receive health care for mental and physical conditions related to MST free of charge. Veterans do not need to have a service-connected disability or seek disability compensation to be eligible for MST-related care.

And, as many who experience sexual harassment or assault have not reported the incidents in the past, it is important to note that veterans do not need to have reported such incidents to the Department of Defense or have documentation or records to support their claims of having experienced such trauma. The responsible VA mental health provider makes a clinical determination as to whether a veteran’s condition is MST-related.

Finally, veterans do not need to enroll in the VA’s health care system to qualify for MST-related treatment, as it is independent of VA’s general treatment authority.

Veterans can learn more about VA’s MST-related services online at:  www.mentalhealth.va.gov/msthome.asp

And you can see video clips with the recovery stories of veterans who have experienced MST at, and learn more at: http://maketheconnection.net/conditions/military-sexual-trauma.

If you have questions about service connected MST and disability compensation, contact us at Legal Help for Veterans.

Legal Help for Veterans, PLLC fights for veterans rights. We fight to make sure you get the benefits you deserve from the Department of Veterans Affairs. To learn more or contact an attorney about your Post Traumatic Stress, Traumatic Brain Injury, Mental Health, Sexual Assault, Hearing Loss and Tinnitus, Total Disability Based on Individual Unemployability, Medical Malpractice, or Aid and Attendance claim, visit http://www.legalhelpforveterans.com/ or call 800.693.4800