Savanna Hoffman
The privacy of student health information is protected by the Family Educational Rights and Privacy Act (FERPA) and, in some cases, the Health Insurance Portability and Accountability Act (HIPAA). FERPA prohibits educational institutions from disclosing personally identifiable information from student education records without consent. However, there are exceptions, such as in health or safety emergencies, or when a student under 21 violates laws or policies regarding alcohol or controlled substances. HIPAA, on the other hand, allows healthcare providers to disclose student health information to school nurses or other healthcare providers for treatment purposes without authorization. This complex interplay between FERPA and HIPAA raises questions about when and how universities can require students to disclose their health information.
| Characteristics | Values |
|---|---|
| Student health information protected by | FERPA, not HIPAA |
| Consent required before disclosure of personal information | Yes, but exceptions exist in emergencies |
| Exceptions to consent | Emergencies, health and safety of others, IRS tax purposes, alcohol or drug violations (under 21), interagency agreements |
| Applicable laws | FERPA, HIPAA |
| FERPA | Family Educational Rights and Privacy Act |
| HIPAA | Health Insurance Portability and Accountability Act |
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What You'll Learn
FERPA and HIPAA laws
The Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records. It applies to educational agencies and institutions that receive funding from the US Department of Education. This includes public schools, school districts, and postsecondary institutions such as colleges and universities. FERPA requires that educational agencies or institutions respond to requests for explanations and interpretations of education records. It also gives students the right to consent to the disclosure of personally identifiable information from their educational records, except under certain permitted situations.
FERPA generally prohibits the non-consensual disclosure of information derived from education records, except in certain circumstances. For example, FERPA permits a college or university to inform the parents of students under 21 if the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance. Schools may also disclose information to parents without the consent of the student if the student is a dependent for tax purposes. In the case of a health or safety emergency, schools are permitted to disclose information from a student's educational records to their parents.
The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule also has its own set of regulations regarding the disclosure of medical information. However, the HIPAA privacy rule expressly excludes information considered 'education records' under FERPA. Student health records maintained by a school are considered part of students' education records and are therefore subject to FERPA, not HIPAA. This includes treatment records for students 18 years or older as long as the school only discloses the records to persons providing treatment. If a college discloses a record to anyone not providing treatment, it becomes a FERPA record and is no longer subject to HIPAA.
In summary, FERPA and HIPAA both have provisions regarding the disclosure of student health information, but FERPA applies to most student health records held by educational institutions, while HIPAA applies to some student health records in certain circumstances.
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Consent and privacy rights
In the United States, the Family Educational Rights and Privacy Act, or FERPA, protects personally identifiable information from education records from unauthorized disclosure. FERPA applies to educational agencies or institutions that receive funds from programs administered by the US Department of Education. This includes public schools, school districts, and postsecondary institutions such as colleges and universities.
FERPA provides certain rights for parents regarding their children's education records. When a student turns 18 or enrols in a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student. FERPA generally prohibits the nonconsensual disclosure of information derived from education records, except in certain specified circumstances. For example, FERPA permits a college or university to inform the parents of students under the age of 21 if the student has violated any law or policy concerning the use or possession of alcohol or a controlled substance. Schools may also disclose information to parents without the consent of the student if the student is a dependent for tax purposes. Additionally, FERPA allows schools to disclose information in cases of health or safety emergencies.
It is important to note that FERPA does not cover treatment records for students 18 years or older, as long as the school only discloses the records to persons providing treatment. In such cases, the Health Insurance Portability and Accountability Act (HIPAA) may apply. HIPAA allows covered healthcare providers to disclose protected health information (PHI) about students to school nurses, physicians, or other healthcare providers for treatment purposes without the authorization of the student or their parent. However, if a college discloses a record to anyone not providing treatment, it becomes a FERPA record and is no longer subject to HIPAA.
Both FERPA and HIPAA have exceptions to protect the health and safety of others in an emergency. For example, during the COVID-19 pandemic, schools had to navigate the disclosure of student health information while maintaining privacy.
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Disclosing COVID-19 status
During the COVID-19 pandemic, universities have had to implement new policies and procedures to protect the health and safety of their campus communities. This includes determining how to handle the disclosure of COVID-19 status for students, faculty, and staff.
In the United States, student health information is typically protected by FERPA (Family Educational Rights and Privacy Act). FERPA prohibits the nonconsensual disclosure of information derived from education records, except in certain specified circumstances. One such exception is when disclosures are made to protect the health or safety of others in an emergency. This means that universities can share information related to a student's COVID-19 status with the campus community if it is deemed necessary to protect the health and safety of others.
Universities have implemented various strategies to track and manage COVID-19 cases on campus while complying with FERPA and confidentiality laws. Some universities have introduced colour-coded systems to indicate the operating status of the campus based on the level of viral infection and the ability to contain it. They also use emergency notification systems to inform the campus community of any changes in operating status. Many universities have also developed COVID-19 dashboards that display a daily count of confirmed positive cases, including faculty, staff, and students, without disclosing any identifying information about the affected individuals.
In addition to reporting positive cases, universities have implemented surveillance testing programs to monitor the spread of COVID-19 among the student population. These programs involve random testing of students living on campus or potentially accessing campus. Students who test positive are isolated, and contact tracing and notification protocols are followed as directed by local and state health authorities.
It is important to note that the laws and policies regarding the disclosure of health information may vary depending on the country and specific university policies. Students and parents can refer to the university's privacy policy or notice of information practices to understand their rights and how their information may be shared.
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Parental access to records
The Family Educational Rights and Privacy Act, or FERPA, provides certain rights for parents regarding their children's education records. Under FERPA, parents and eligible students have the right to inspect and review the student's education records maintained by the school, request an amendment to the records, and consent in writing to the disclosure of personally identifiable information, except under certain permitted situations.
FERPA applies to educational agencies or institutions that receive funds from programs administered by the U.S. Department of Education, including public schools, school districts, and postsecondary institutions such as colleges and universities. When a student reaches 18 years of age or attends a postsecondary institution at any age, the rights under FERPA transfer from the parents to the student. However, FERPA provides ways for institutions to share education records with parents even after this transfer of rights.
For example, schools may disclose information from a student's education records to parents if the student is a dependent for tax purposes under IRS rules. FERPA also permits schools to disclose information to parents in cases of health or safety emergencies, such as during the COVID-19 pandemic. In such cases, schools are responsible for determining whether to disclose information on a case-by-case basis, considering all relevant circumstances. FERPA also allows post-secondary institutions to inform parents if their child has violated any law or school rule concerning the use or possession of alcohol or controlled substances.
It's important to note that FERPA does not cover treatment records for students 18 years or older if the disclosure is made only to those providing treatment. In such cases, HIPAA (the Health Insurance Portability and Accountability Act) would likely apply to those treatment records. Additionally, private schools are generally not subject to FERPA and are not required to release information under the Act.
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Alcohol and drug violations
At Stanford University, for example, students living in university housing sign a residence agreement that outlines expectations regarding alcohol and drugs. Violations can lead to the loss of university housing privileges. Stanford also has a policy that requires staff members to notify the Resident Director On-Call or the Graduate Life Office Dean On-Call if they encounter controlled substances, and the Stanford Department of Public Safety will oversee the safe removal of these substances.
Miami University also has strict alcohol and drug policies, prohibiting their use in the workplace or on university property. Employees and students must notify the university of any criminal drug statute convictions occurring on university property within five days. Violations of Miami University's policies can result in disciplinary action, including suspension or dismissal for students and up to termination for employees. The university encourages education as the first step, offering programs like the Alternatives Program and the Chemical Abuse Education Program to help students understand the consequences of substance use.
Universities also have procedures in place to handle situations where alcohol or drug violations overlap with incidents of sexual violence. For example, at Stanford, if a sexual assault victim reports an assault, any ongoing alcohol violation process will be halted, and if a process has been completed, any findings or consequences will be rescinded. The university will then focus on investigating and adjudicating the sexual violence report.
In terms of privacy, universities generally do not release disciplinary information about students without prior written consent. However, students may be required to provide consent when applying to certain graduate programs, employers, or institutions that require such disclosure. Additionally, universities are mandated to report certain crimes, including liquor law violations, to the Department and include them in their annual security reports.
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Frequently asked questions
FERPA stands for the Family Educational Rights and Privacy Act. It protects personally identifiable information from education records from unauthorized disclosure. It applies to educational agencies or institutions that receive funds from programs administered by the U.S. Department of Education.
Yes, FERPA applies to most school health records most of the time. However, it does not cover treatment records for students 18 years old or older as long as the school only discloses the records to persons providing treatment.
The Health Insurance Portability and Accountability Act (HIPAA) applies to some school health records some of the time. HIPAA permits health care providers to disclose PHI about students to school nurses, physicians, or other health care providers for treatment purposes without the authorization of the student or their parent.
Generally, consent is required before disclosing personal health information. However, FERPA and HIPAA have exceptions when disclosures are necessary to protect the health or safety of others in an emergency. Additionally, FERPA permits universities to disclose information to parents of students under 21 who have violated laws or policies regarding alcohol or controlled substances.
