Confidential

•spoken, written, acted on, etc., in strict privacy or secrecy; secret:a confidential remark.
•indicating confidence or intimacy; imparting private matters:a confidential tone of voice.
•having another's trust or confidence; entrusted with secrets or private affairs: a confidential secretary
•bearing the classification confidential, usually being above restricted and below secret.

Restricted

•confined; limited.
•bearing the classification restricted, usually the lowest level of classified information.
•limited to persons authorized to use information, documents, etc., so classified. 3.limited to or admitting only members of a particular group or class:a restricted neighborhood; a restricted hotel.

Secret

•done, made, or conducted without the knowledge of others:secret negotiations.
•kept from the knowledge of any but the initiated or privileged:a secret password.
•faithful or cautious in keeping confidential matters confidential; close-mouthed; reticent

Family Education Rights and Privacy Act (FERPA)

The Family Education Rights and Privacy Act is a federal law that outlines who has access to education records. It applies to all schools that receive federal funds from a program administered by the U.S. Department of Education.

Does FERPA apply to school health records?

YES, “education records” is broadly defined under FERPA to include a student’s health records, including immunization records, records maintained by a school nurse, as well as records maintained concerning services provided to students under the Individuals with Disabilities Education Act.

Health Insurance Portability and Accountability Act (HIPPA)

The Health Insurance Portability and Accountability Act is another federal law that dictates how health records are to be handles. A school is subject to HIPPAA only if it provides medical care and electronically transmits health information as part of a “covered transaction” (e.g. billing)

For most schools, HIPAA will only be an issue when communicating with a student’s medical provider. While school health records are not regulated by HIPAA, almost all medical practitioners are covered by HIPAA. ”Treatment purposes” is one of the exceptions: a practitioner may relay or clarify treatment orders to individuals involved in the treatment of that patient, such as to the school nurse without obtaining authorization of the student or parent. Best practice, however, is that the parent/guardian signs a release of information allowing communication between provider and the school.

Protection of personally identifiable health information contained in medical or treatment reports from an outside provider is the responsibility of the requester. Ideally the school nurse summarizes the educationally relevant information from the outside record source into the student’s cumulative health record and then destroys the outside record.

Consent

Since most school records are covered by FERPA, who can access this information without parental consent?

Under the FERPA regulations, “eligible students” and parents of minor students have a right to see their records. “Eligible students” are those that are at least 18 or those who are attending a postsecondary institution. In general, parental consent is required for others to access information in students’ health records. Importantly, in Colorado, the age of majority for education purposes is 21, and the Individuals with Disabilities Education Act provides that parental consent is required for the release of special education records unless the child has reached the age of majority under state law.

Is consent always required?

Accordingly, students 18 and older have the right under federal law to access their education records, except for special education records, for which they must wait until they are 21.

When consent is NOT required.

There are certain circumstances where consent is not required:

• School officials, including teachers, that have a “legitimate educational interest”

• In an emergency “if knowledge of the information is necessary to protect the health or safety of the student or other individuals

• Instances of abuse or neglect

• Information that is required by a school to which the student is transferring

• Certain legal situations including subpoenas or investigations of criminal offenses

So, why are school districts reluctant to share information with school transporters?

Misinformation about and/or misunderstanding of the law’s confidentiality requirements.

Rational of Disclosure

•Knowing a child’s diagnosis or “label” isn’t enough and, in fact, is of limited actual value. Instead, school transportation professionals need to know “the what” and “the how” of this child’s disability-related transportation needs

•“Transportation providers play an integral role in the school lives of many children, including children with disabilities.” Office of Special Education and Rehabilitative Services marked the “essential” need for “effective communication between school and transportation providers.”

When transportation is provided as a related service to a special education student -- that is, because transportation is necessary for the child to access Individualized Education Program (IEP) services -- then transporters are related service providers. Under such circumstances, the school district must provide necessary information to school transporters. That information includes setting forth the role of transportation personnel in meeting the unique needs of the child as identified in his/her IEP, and those “accommodations, modifications, and supports” identified in the child’s IEP which relate in any way to the transportation environment.

Furthermore, related services providers must receive information about relevant IEP changes when the changes are made without the direct involvement of those providers. Specifically, when an IEP has been revised – and there are times this can occur without an IEP meeting – the Analysis states that “it is important that the personnel responsible for implementing the revised IEP be notified and informed of the changes with respect to their particular responsibilities.”

Broader Permission to disclose information

While the IDEA Regulations impose a mandatory duty on school districts when transportation is a related service, FERPA gives broader permission to disclose information about a child under two situations: (1) when a parent consents to the disclosure; or (2) to “school officials” with a “legitimate educational interest” even when the district has not obtained such prior consent.

Who is a School Official?

“A school official is a person employed by the District as an administrator, supervisor, instructor or support staff member. . .; a person serving on the School Board; a person or company with whom the District has contracted to perform a special task. . .”

What is a legitimate educational interest?

And, a school official has “a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.”

Conclusion

School transporters can legally receive information about students’ health and medical conditions when these conditions may impact transportation planning and implementation. Factors to be considered in setting conditions for such disclosure include: the determination of legitimate educational interest; compliance with FERPA requirements of notice; requiring confidentiality of the transporters to whom the information is disclosed, and, training. It is clear that once transporters are trained regarding the requirement of confidentiality, school district and medical personnel are well-advised to share this information.



Last modified: Monday, 27 June 2022, 11:52 AM