Confidential
Restricted
Secret
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. 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. 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 Misinformation about and/or misunderstanding of the
law’s confidentiality requirements. 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.” 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. . .” 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.