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Margolis Healy In the News: August, 2015

BREAKING: New Draft DCL on FERPA Released. Margolis Healy Explains

August 20, 2015

On Tuesday, August 18, 2015, the US Department of Education, Family Policy Compliance Office issued a draft Dear Colleague Letter (DCL) (PDF) reminding institutions of their "their obligations under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g and the regulations in 34 C.F.R. Part 99, to protect students' education records from disclosure without consent, and to provide guidance more specifically on the disclosure of student medical records." In a blog post, the department explained it is seeking comments via email from the public until October 2, 2015, regarding whether, among other things, the guidance in the draft DCL might have unintended consequences.

What's In It and Why Now?

The draft DCL comes in response to growing concerns about the potential for inappropriate access to student medical records as the rate of student utilization of on-campus health and counseling services climbs in response to sexual violence, other violence, harassment, and mental health needs. Kathleen M. Styles, Chief Privacy Officer for the US Department of Education, notes, "These benefits cannot be fully realized in an environment where trust between students and the institution is undermined. Students should not be hesitant to use the institution's medical services out of fear that information they share with a medical professional will be inappropriately disclosed to others."

The draft DCL clarifies the following key areas:

  • When a court order or written student consent should be required for medical record access (in cases of litigation between the institution and student);
  • History of FERPA and the definitions and differences between medical record, education record, and treatment record;
  • How the Health Insurance Portability and Accountability Act (HIPAA) and FERPA intersect; and
  • Exceptions under FERPA where medical records may be disclosed without consent such as those related to disclosure to school officials with a legitimate educational interest, disclosure to a court without a court order or subpoena, and disclosure related to a health or safety emergency.

In sum, the DCL suggests (but does not require) that institutions determine the appropriateness of disclosing student mental health records by applying privacy and disclosure principles developed under HIPAA. Ms. Styles concludes the DCL by stating  that the department believes "students have a reasonable expectation that institutions will maintain the confidentiality of their conversations with healthcare professionals, and we commend the many institutions that have made thoughtful and sensitive decisions that respect the private nature of students' medical records."

Analyzing the Draft DCL

According to Dr. Christine I. Garcia, Clinical Director of the Young Adult and Family Center, Department of Psychiatry, University of California, San Francisco (UCSF), and faculty member for the National Center for Campus Public Safety's Trauma-Informed Sexual Assault Investigation and Adjudication Training Program, providing students the opportunity to receive confidential support from university departments, such as counseling services, for issues related to sexual and gender violence, is essential to a trauma-informed response. "The rising rates of student utilization of mental health and other related services is encouraging, and points towards the good work that professionals have done in decreasing stigma and addressing fears about seeking support," said Dr. Garcia. With the recent DCL, the Department of Education is emphasizing the importance of university health and counseling centers upholding and balancing student safety, health, and privacy. Garcia went on to explain that "appropriate and informed consent regarding the limits of the patient-provider relationship, and the limitations of confidentiality under FERPA, are issues that institutions should be addressing with key stakeholders. A clearly outlined, informed consent document, fully reviewed and explained to students, is essential to enhancing trust and supporting a strong, trauma-informed institutional response. It is incumbent for institutions of higher education to review informed consent policies that encourage a coordinated institutional response focused on promoting safety AND health for each individual student, as well as the larger student body."

It should be noted, however, that the draft DCL emphasizes that its guidance is not intended to limit the sharing of student mental health information with members of a campus threat assessment team as necessary. This is a crucial point, according to Jeffrey J. Nolan, an attorney with Dinse, Knapp & McAndrew, P.C. and a faculty member for the National Center for Campus Public Safety's Trauma-Informed Sexual Assault Investigation and Adjudication Training Program and the Department of Justice-sponsored campus threat assessment training program presented nationally by Margolis Healy. Nolan observes, "The department stressed that it 'wishes to be very clear that today's guidance on the scope of the school official exception in no way diminishes the sharing of records and information allowed under FERPA to prevent or respond to violence on campus.'" This is crucial, in Nolan's view, because institutions need to recognize that they can continue to access a broad range of information when necessary and appropriate to do threat assessment, with the confidence that the draft DCL does not limit their ability to do so to promote campus safety. Nolan also noted that even though the draft DCL encourages institutions to exercise caution in using student mental health records in the litigation context, even analogous (but not strictly applicable) HIPAA rules permit health care providers to access and use health records on an appropriately limited basis in circumstances where a patient puts the records at issue by filing a lawsuit against the provider, and the draft DCL recognizes the appropriateness of this practice in a case involving a student and an institution.

We encourage you to contact us with any questions about this draft DCL or for more information about how we can specifically help your institution.

Warm Regards,

Steven Healy                                             Mike Webster
Co-Founder & Managing Partner              Director for Regulatory Compliance

Sr. Dir. Dan Pascale Authors Article on School Security Market

August 12, 2015

Senior Director of Security and Emergency Management Services Dan Pascale, CPP, has authored an article for SecurityInfoWatch enttitled, "Navigating the School Security Market." Dan's article is a comprehensive look at "contemporary standards" in the field that is important for not only practitioners and consultants "but certainly the manufacturers, dealers and integrators who provide exceptional services and products to so many institutions. The challenge is understanding what the needs of a large residential, urban university with substantial resources might be vs. a small, rural day school with limited financial and human resources." 

Gary Margolis on Bystanders and Sexual Assault

August 10, 2015

Gary Margolis shared his thoughts on bystander intervention in the second in a series of four Campus Safety magazine articles covering sexual assault, relationship violence and stalking. Read the entire piece: Bystanders: Your Best Weapon Against Sexual Assault

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