CONFIDENTIALITY
Right to Know
versus
Need to Know
When HIPPA and FERPA
intersect
1
CASE SCENARIOS
Student’s blue form is missing some PE and
immunization data on first day of school…
Teacher wants to know if student takes
medication…
Principal demands a list of students with
health conditions (special needs)…
15 yr old student thinks she’s pregnant refuses to tell parents…
IEP/504 team requests medical diagnoses
from SBHC representative to the team…
Student-client with drug problem seen using
2
in school…
DEFINITIONS
Privacy: The right of an individual to be
left alone…
Confidentiality: A trust relationship
between two or more people…
Consent: the considered agreement… to do
something or allow something to happen
after careful consideration of all the facts…
3
ISSUES
Different laws; conflicts among them
Conflicts between policy and practice
Working with minors
Insufficient guidance
Inadequate pre-service and in-service education
Communication issues
Variable employers
Situations unique
4
CONFIDENTIAL HEALTH
INFORMATION
Details of a health history, exam findings,
medication requirements, treatment history
Records of HIV testing, treatment for drug
alcohol abuse, psychiatric evaluation and
treatment
Nursing, social work, counseling,
psychology: histories, evaluations, progress
notes
Section 504 plans
IEP evaluations and recommendations
Early Intervention - assessments, plans,
interventions
Other individually identifiable student
health information
5
FERPA
Federal Educational Rights and Privacy Act
Protects all school records health including
health. School health records are considered
educational records and fall under the
jurisdiction of FERPA
Any record covered by FERPA is not subject
to HIPAA
Medical records or “treatment records” in
education records are not HIPAA
Reasonable safeguards should still be used to
protect health information
HIPAA-COVERED ENTITIES
Health care providers (persons who furnish,
bill or are paid for health care in the
normal course of business) who transmit any
personally identifiable health information
electronically...
Health plans
Health care clearinghouses
7
HIPAA-COVERED ENTITIES
School-based health clinics operated by health
care agencies
School health professionals who provide health
services in private schools with no federal
funding and transmit any personally
identifiable health information electronically...
School district employee health plans that are
self-insured
8
HIPAA & SCHOOLS
Healthcare
providers
may fax to reasonably
secure faxes
They
may share PHI with
health professionals not
covered by HIPAA if it is
for treatment reasons
They
are not required by
HIPAA to do either
9
FERPA-COVERED ENTITIES
All public schools*
Private schools that receive any federal $$
Colleges and universities with federal $$
* The records of school nurses who are
employed by a health department,
hospital or other agency and who provide
school health services for the school
district under any kind of contract are
FERPA records
10
FERPA—essential principles
Records kept confidential
Parent or eligible student can access records
Parent or eligible student can request
amendment of records if inaccurate or
misleading (districts need not comply)
*Eligible student is 18 years of age OR is in
postsecondary education
PERMITTED DISCLOSURES
Internal sharing without consent
to other school officials if for “legitimate educational
interest” as defined by the school district
to contracted employees (e.g., medical advisor or
educational or psychiatric consultant paid by the
district)
To officials of contracted agencies, such as outside
educational agencies where district has placed student
12
School Officials with Legitimate Educational
Interests
LEA must have criteria for determining
Who constitutes a “school official” (usually any
employee, contracted employee, etc)
What constitutes a “legitimate educational interest”
???????
LEGITIMATE EDUCATIONAL INTEREST
Should mean:
Use
is consistent with purposes for which
data are collected and maintained
Written
criteria for access
Necessary
to perform task/service or make a
relevant determination about student
Used
within context of school district
business
Balanced
interests – individual/community14
PERMITTED DISCLOSURES
External release without consent
To next school in which student intends to enroll, if in
annual notice
Health/safety emergency*
Research
Judicial order/subpoena
Audit by state/federal officials
State mandates: immunizations, child abuse, asthma
Certain public health activities (i.e. TB, certain communicable
disease)
Information regarding treatment
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Information Regarding Treatment
Medication authorization/clarification
Treatment authorization/clarification
Asthma action plan
Seizure action plan
Emergency allergy plan
Diabetes action plan
FERPA-Health or Safety Emergency
Agency or institution “may disclose personally
identifiable information from an education
record to appropriate parties in connection with
an emergency if knowledge of the information is
necessary to protect the health or safety of the
student or other individuals”
When Transfering CHR
Non-transferable forms:
Miscellaneous health care provider and parent notes
Release of information forms
Third-party reports (such as medical and psychiatric
records)
May not be transferred to new district without
written parental permission.
Summary of report should be noted on CHR-1 or in
SNAP.
Medical/psych records or evaluation done by school
employees are not considered third-party reports.
Cannot record info re HIV/AIDS. Return information
to sender, if received without proper consent
To Call or Not to Call???
Student absent for three days, parents say
student is sick but do not wish to explain
further. Can the nurse calls pediatrician for
more info…?
What about if a note from MD was received ?
Traditional Practices VS. Best Practice
Health Concern lists
Logs
Lists to Principal
Notes back to teachers
FERPA- Record of Access
LEA must keep a record of access requests
Individuals who do not require written authorization
Parent
School officials with legitimate educational interests
Party with written consent from parent
Specifically protected legal inquiry (subpoena)
FERPA- parent’s amendment of records
Parents can request amendment of records If
believed to be:
Misleading
• Inaccurate
• In violation of the student’s right to privacy
•
FERPA- Parents access to records
“ A parent must be given the opportunity to
inspect and review the student’s educational
records.”
Note: Under special education regulations (1076d-18). Parents have the right to a free copy
of “any educational records relating to their
child.”
FERPA-Requesting Amendments of Records
LEA decides whether or not to amend
Parent has a right to hearing
If LEA doesn’t amend?
If parent loses hearing?
Parent may place statement in record
commenting on disagreement
Drug and Alcohol Treatment
A minor CAN consent for drug/alcohol treatment from a
licensed treatment provider
A parent CANNOT be told that his/her child is receiving
treatment without consent from the minor
No decision on whether a physician must report results of
a drug test, done during a routine physical, to a parent.
CT. Gen. Stat 10-154 a
School Employees - NOT required to disclose info acquired
through professional communication with student
involving drug or alcohol abuse or problem
If employee obtains physical evidence from a student
(indicating crime committed) must turn over to school
administrators or law enforcement within 2 school days
Employee is not required to disclose a student’s name from
whom evidence was obtained
Mental Health Treatment: Outpatient
A minor CAN receive initial treatment without parental
consent if:
The consent requirement would cause the minor to reject
treatment
The treatment is clinically indicated
The failure to receive treatment would be detrimental to
the minor’s well being
The minor knowingly and voluntarily sought such
treatment
The Provider deems the minor mature enough to
participate in treatment productively
Reproductive Health Care
Birth Control
Pregnancy
Counseling
Abortion
Sexually Transmitted Diseases
Birth Control
Any person in the state of CT, regardless of the
person’s age, can receive confidential birth
control.
Pregnancy
A minor does not need permission from a parent
to receive a pregnancy test and the parents do
not need to be notified of the test
A minor may decide whether or not to carry the
pregnancy to term
A minor may consent to gynecological
examinations without parental consent
Abortion and Termination of Pregnancy
Any minor in CT. may obtain an abortion
without parental consent, although an abortion
for anyone, may only be performed before the
viability of the fetus, except when it is necessary
to save the life or health of the mother
Sexually Transmitted Procedures
The consultation, examination and treatment of an STD
for a minor is confidential and must not be divulged to
parents-including the sending of a bill
DCF must be notified of a positive STD if the minor is 12
years of age or younger. Care and treatment of this minor
remains confidential, although DCF must proceed with
their own investigation
Child Protection System and Adolescent Care
What Must be Reported?
14 y.o. girl in relationship with 17y.o. consensual?
14 y.o in relationship with 19 y.o. consensual?
14 y.o in consensual relationship with 23 y.o.?
17 y.o with coercive relationship?
12 y.o. in consensual relationship with 14 y.o ?
DCF Reporting guidelines
Child under 13-must report to DCF/police
Child b/t 13-15 engaged in consensual sexual relationship
with partner 21 and over must report to DCF/police
Child under 18 on non-consensual/coerced sexual activity
must report to DCF/Police
Child b/t 13-15 engaged in consensual sexual relationship
with partner under 21 NOT mandated to report
(16 y.o. Can have sex with anyone)
Statutory Rape
Sexual Assault Crime
Most common-child under 16 who engages in
sexual intercourse with partner greater than (3)
years their senior. Not necessarily reportable.
discretion/judgment to be used
Consent is not a defense
Case Studies
A 15yo high school student asks to se the nurse.
When he gets into her office, he says he has been
smoking marijuana for a while now, and he
wants to quit and asks for help. He then hands
her a bag of marijuana.
What should the nurse do?
What are the student’s legal rights?
Marks’ Drug Confession
Not mandated to report
Not obligated by law to report the identity of the drug user
to the police/child welfare authorities
MUST turn over evidence to authorities
Student has confidential right to drug treatment w/out
parental consent but is liable for all costs if treatment
incurred
Allison, a 14 y.o. high school student, enters
counseling and seeks birth control after
disclosing she wishes to enter into a sexual
relationship with her boyfriend. Allison gets a
prescription but does not go for the appointment
and ends up pregnant
Question
Does the sexual activity require a report to DCF?
Is she entitled to birth control at 14?
What are her options regarding her pregnancy?
Allison discloses that her boyfriend is 17 years old.
Does this change anything? What if the boyfriend is
20? 23?
Allison’s Pregnancy
Sexual activity not reportable to DCF unless other
circumstances
Entitled to Birth Control at 14
Pregnancy options
Carry to Term
Adoption
Abortion
17yo not reportable
20 yo not reportable
23 yo reportable
PRACTICE DILEMMA
Need To Know
Versus
Right To Know
41
CASE SCENARIOS
Student’s blue form is missing some PE and
immunization data on first day of school…
Teacher wants to know if student takes
medication…
Principal demands a list of students with
health conditions (special needs)…
15 yr old student thinks she’s pregnant refuses to tell parents…
IEP/504 team requests medical diagnoses
from SBHC representative to the team…
Student-client with drug problem seen using
in school…
42
DECISION MAKING CRITERIA
Age and competency of student
Relative sensitivity of information
Applicable laws
Purpose of / with whom sharing (LEI)
School district policies & procedures
Informed preference of student/parent
Expert advice
Ethical considerations
Use of student-provider contract
43
FERPA ON-LINE
http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html
Resources
The Alan Guttmacher Institute. (2009). State policies in brief: An Overview of
Minors’ Consent Law. Available on-line:
http://www.guttmacher.org/statecenter/spibs/spib_OMCL.pdf
Bergren, Martha Dewey (JOSN articles, chapters in school nursing texts; *
computerized records)
Schwab, N.C., Rubin, M. Maire, J.A., Gelfman, M.H.B, Bergren, M.D., Mazyck,
D. & Hine, B. (2005). Protecting and sharing student health information:
Guidelines for developing school district policies and procedures. Kent, OH:
American School Health Association.
Schwab, N. & Gelfman, M. (2001). Confidentiality: principles and practice
issues. In Schwab, N.C.& Gelfman, M.H.B., Eds. Legal issues in school
health services. North Branch, MN: Sunrise River Press.
Selekman, J., Ed. (2006). School nursing: A comprehensive text. Philadelphia:
44
F.A Davis.
Q&A
