By Marion M. Walsh, Esq.

It’s that wonderful time of year, when parents are helping their children prepare for college and sending them off.  It is also the time to adjust to a new type of parenting and advocacy.  By taking careful steps, you can ensure that you remain an effective advocate in your new capacity, as needed.

For all parents, particularly parents of students with disabilities, including mental health conditions, the transition brings great pride, but also a significant amount of concern and worry. The COVID-19 pandemic has disrupted many students’ education and made the process even harder, and more and more students are struggling with challenges, particularly with difficulties such as anxiety and depression. Thus, is it even more important to understand how to be an effective advocate if needed.

Rights Transfer to Student in Adulthood

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 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 Questions and Answers on Transitioning to the Parental Advocate of a Young Adult

1. How Can I  Help my Child Advocate Effectively and What Should My Role be? 

Remember, you are no longer your child’s primary advocate.  The advocacy role must change to your student.  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 student,  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 their children.

• What are Legal Obligations of College toward Students with Disabilities?

It is important to understand the legal rights of individuals  of students with disabilities after graduating from high school, as an important first step.   If your child has graduated or aged out of special education services, Section 504 of the Rehabilitation Act and the Americans with Disabilities Acts now apply.  These laws 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),  generally, these services generally only extend through the school year in which the student turns 21 or graduates  –  whichever comes sooner (although you do still retain parental rights to advocate for past services with your school district). Keep in mind that if you think your child needs more support than Section 504 accommodations, you and your child may seek a more supportive college geared toward students with disabilities or seek additional private support, such as learning specialists or coaches.

Significantly, after high school, students are no longer entitled to a free appropriate public education (FAPE) and IEPs do not continue in college.  Students must provide appropriate and recent documentation of their disability to the college and seek accommodations. 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. Also, absent a specific agreement, a college will not monitor student’s progress or alert you difficulties. .

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The Family Educational Rights and Privacy Act of 1974 (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protect student privacy and also allow students access to their own records.  These rights of access and privacy transfer to your student at 18 years of age.    Under FERPA, 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.  Under HIPAA, 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 and your student  review  the college’s ’s policy on FERPA, not just for release of records to you but to others.  Your student should understand the college policy’s on sharing their confidential information, as FERPA has broad exceptions to confidentiality.  For example, colleges may release a student’s protected information within the college to other college officials with “a legitimate educational interest” in the information. While most parents are concerned that they should have access and learn of a student’s struggles, a student also has the right to ensure that their confidential information is protected. 

• What Other Forms Should I Offer my Child for Protection?

When your child turns 18, it is a good idea to have a Power of Attorney signed.  A Power of Attorney gives you the right to act on your child’s behalf in case your child becomes incapacitated or is unavailable to transact necessary business, such as during a semester abroad.  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 Advance Directives, including a Health Care Proxy 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 Advance Directives.

• Can I Still Remain an Involved Parent?

Yes. 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 generally 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.