Confidentiality &
Communication Issues
Wesley E. Johnson
Escamilla, Poneck & Cruz, LLP
wjohnson@epc-law.com
Within first five minutes of your Monday
morning, you have already had to handle
four different interesting situations:
• #1 – Mary’s mother calls to request information regarding Mary’s
demeanor at school this morning. Mary had a terrible weekend and has
been depressed lately. Her mother asks that you call her later to
discuss your thoughts with her after talking to Mary.
• #2 – The assistant principal brings you in some papers that were served
to the school at the end of the day on Friday. You and the assistant
principal have been served a subpoena duces tecum which means that
records have been subpoenaed by Eduardo’s father in a nasty custody
battle.
• #3 – You receive a request to answer questions from a news reporter
regarding a former student who is now famous.
• #4 – Suzie Q comes to your office worried about her boyfriend’s drug
use. You are also worried about him and you talk to the school’s
principal about your concerns. He suggests that you call the local
police.
Laws:
• Texas Statutes
• Federal Laws
• Caselaw from 5th Circuit and
other circuits
• Attorney General Opinions
• Commissioner of Education
Opinions
• Certification Boards
Generated and Maintained in School Setting Likely to be Education Records
• Professionals in school setting
must therefore be familiar with laws
related to education records
• Common ideas behind all related
laws
• Confidentiality
• Parental Access
Numerous Laws Involved Here:
• Texas Public Information Act (TPIA) – Tex. Gov’t
Code, Ch. 552
• FERPA (Family Educational Rights and Privacy Act) –
20 USC 1232g
• Individuals With Disabilities Education Improvement
Act (IDEIA)
• HIPAA – Health Insurance Portability and
Accountability Act
• Records Retention Laws
Texas Public Information Act
• Share everything unless confidential or exception applies
• “Public has a right to know”
• Freedom of Information Act (Federal Law)
• Previously, Student Records, Tex. Gov’t Code 552.114 Exception
• Information in a student record at an educational institution
funded wholly or partly by state revenue = confidential
• But shall be made available on the request of: (1) educational
institution personnel; (2) the student involved or the student's
parent, legal guardian, or spouse; or (3) a person conducting
a child abuse investigation required by Subchapter D, Chapter
261, Family Code.
What You Probably Already Know…
• FERPA – Family Educational Rights and Privacy Act - federal law
governs education records
• “Education records” = records, files, documents, and other materials
that contain information directly related to a student and maintained
by an education agency or institution or by a person acting for such
agency or institution.
• Records can be released to parents or eligible students or to others
if written parent consent provided
• No need for written consent if:
– School officials with legitimate educational interest
– Directory Information
– Sole Possession Records
Family Educational Rights and Privacy Act
(FERPA), 20 USC 1232g
• Intended to protect rights of students and parents
• Three basic rights:
• Right of parent to inspect and review education records
• Right to challenge & require amendment of education
records
• Right to require written consent prior to disclosure of
personally identifiable information education records
FERPA Defines “Parents”
• Natural parent
• Guardian
• Individual acting as parent in the absence of a parent
Defining
“Educational Records”:
• Records Pertaining Directly To
Student;
AND
• Maintained By Or On Behalf Of
School District
STUDENT EDUCATION RECORDS:
FERPA
• Attendance Records
• Psychological Testing
• Discipline Records
• Behavior Logs
• Counseling Records
• Class Work
• Report Cards
• Awards Received
• Standardized Test
Results
• Special Education
Records
• Health Records
• E-mails
• Teacher Evaluations
“Educational Records”=
Info Recorded In Any Way:
• Print
• Handwriting
• Computer Media
• Video or Audio Tape
• Film
• Microfiche
• Microfilm
Right to Inspection Includes Electronic
Data
• Cannot answer – no because
it is only on my computer
• 1996 amendment to definition
of “record” to add term
“computer media”
• How to inspect is local
decision
• Print a hard copy?
• Otherwise allow for review…
Who is the District’s Custodian of
Records?
• Look to FL (LOCAL)
• Typically the principal is
custodian of records for currently
enrolled students
• Superintendent – those having
withdrawn or graduated
• Student handbook has
information.
Information in an electronic data base is a
record
• FERPA – any information recorded in any way, including
but not limited to, handwriting, print, computer media,
video or audio tape, film, microfilm, and microfiche
•
TEC 26.004 – Parent entitled to access to all written
records concerning student including…(8) health and
immunization records
Internet Access
• District policy – provide parents
who lived outside of commuting
distance of school district the
opportunity to review student
records via Internet rather than
provide a hard copy of records
• Opportunity to inspect and
review within 45 days is key
• Letter re: Broward County Pub.
Schs., 11 FAB 18 (FPCO 2007)
What if Request is Made Via E-mail?
• Letter to Anonymous, 11
FAB 7 (FPCO 2007)
• Parent e-mailed request for
student records
• Safeguards can be used to
prevent unauthorized
disclosure to 3rd parties
• District merely requested
additional identifying
information prior to sending
records
School Health and Medical Records
• Copies of medical records outside
school setting become education
records when submitted to school and in
school’s possession
• Content is not issue
• Maintenance is the issue
• Screenings or exams
• Assistance in school health office
• Resulting documentation – education
record to extent that it is maintained by
district
What if Student Wants to Prevent Review
of Student Records by Parents?
• Law has no waiver component
• Parents may review until 18
years of age
• Exceptions?
• Suspected abuse?
• Counseling?
• HIV Status (Health & Safety
Code 81.103)
• Drug and Alcohol Patient
Treatment?
Parent Right to
Inspect Counseling Records
• Texas Attorney General
Opinion JC-0538 (2002)
• Apparent conflict between
TEC 26.004 Health and
Safety Code 611.0045
• Only under narrow
circumstances = records
may be withheld
• Only LPC have privilege
Parent Consent Must be in Writing…
• 2004 Regulation
• Signed and dated written
consent can be in electronic
format if:
• It IDs & authenticates
particular person as the
source
• Indicates the person’s
approval of the information
contained in the consent
• Technology neutral in time
of technological change
Countdown of the 12
Ways that Student
Records May be
accessed Without
Parental Consent:
• #1 To Teachers or Other District Officials With a
Legitimate Educational Interest
• #2 To officials of another school system or school
where the student seeks to enroll or has enrolled.
• #3. To authorized representatives of the U.S.
comptroller general, the federal education
secretary, or state and local educational
authorities.
• #4. In connection with the application for or
receipt of financial aid.
• #5. To state and local juvenile justice systems or
their officials.
• #6. To organizations conducting educational
studies.
• #7. To accrediting organizations.
• #8. To parents of an eligible student
considered a dependent student under the
Internal Revenue Code.
• #9. In compliance with a judicial order or
lawfully issued subpoena.
• #10. In connection with a health or safety
emergency.
• #11. Information is designated as directory
information.
• #12. To the parents of a non-eligible student
or to an eligible student
Additionally -- some records are
specifically not education records
• Sole Possession records
• Law Enforcement Records
• Grades on Peer Graded Papers
• Specifically designated postsecondary records
• Records created after student no longer in attendance
and not related to student’s attendance
#1 To Teachers or Other District Officials
With a Legitimate Educational Interest
•
School Officials= person employed by the school as an:
•
Administrator,
•
Supervisor,
•
Instructor, or
•
Support staff member (including health or medical staff and law
enforcement unit personnel);
•
A person serving on the School Board;
•
A person or company with whom the School has contracted as its agent
to provide a service instead of using its own employees or officials
(such as an attorney, auditor, medical consultant, or therapist); or
•
A parent or student serving on an official committee, such as a
disciplinary or grievance committee, or assisting another school official
in performing his or her tasks.
Other party to whom an agency or
institution has outsourced institutional
services or functions can be a “school
official” if:
• They perform an institutional service or function for
which the agency or institution would otherwise use
employees;
• Is under the direct control of the agency or institution
with respect to the use and maintenance of education
records; and
• Is subject to FERPA requirements governing use and
redisclosure of personally identifiable information from
education records
What About Outside Consultant
Hired to Consult With Staff
Regarding Student?
• Okay.
• Contracted with District to perform official task
• Had “legitimate educational interest”
• Acting within the duties of school official
• Letter to Anonymous, 11 FAB 5 (FPCO 2007)
• Proposed regulations designed to clarify this
Outsourcing
• Expands “school official exception” to include
contractors, consultants, volunteers, and other outside
parties to whom educational institution has outsourced
institutional services or functions that it would
otherwise use employees to perform
• Outside party must be under direct control of agency or
institution and subject to same use and redisclosure
rules regarding education records
• Annual FERPA notice must specify outside parties
• District remains responsible for their actions
• Only question…what is “direct control”?
Letter to Hollingsworth, 10 FAB 40
(FPCO 2007)
• Suicide prevention program specialist (not employed
with district) wanted to discuss suicidal students with
staff as part of her program without consent from
parents.
• School officials could provide information regarding own
observations BUT
• Not permitted to disclose information (even names)
contained in education records w/o written parental
consent
• BE CAREFUL!
McGilvray v. Boyd ISD, TEA Dkt. No.
185-R2-597 (Comm’r Dec. 1997)
• Juvenile probation office to speak to 6th
graders
• Peer pressure, gangs, drugs and alcohol
• Teacher prepared a list of students with
attitude problems
• “Thoughtless, disresept [sic], rude, selfish,
uncaring”
• Mere fact that officer was coming to campus to
make presentation does not make him a
school official for FERPA
Investigations/Grievances/Personnel
Matters…
•
Investigation materials often include student records:
•
Many, if not all requests for documents by SBEC, will seek investigation
materials and student records.
•
Unfortunately, the only FERPA exception that would authorize state
agencies such as SBEC/TEA to receive student information without
parental consent is if the state agency were auditing or evaluating federally
supported education programs or enforcing federal legal requirements
related to such programs.
•
Therefore, if parental consent is not obtained, the information should not
be released and SBEC should be told that the District is withholding the
student information pursuant to FERPA.
•
It should also be pointed out that the phrase “school official” = local school
district official and does not = SBEC/TEA.
•
Subject of proposed regulations
Austin ISD v. Cruz, TEA Dkt. No. 024-LH1109 (Comm’r Dec. 2010)
• Good Cause for termination of contract
• Wonderful evaluations
• Employed with District 37 years (since 1973)
• Right to retain student information?
• Right to transmit and reveal student information to her own
attorney as part of a grievance?
• Right to transmit and reveal student information to employees
who were not directly involved with education of student, but
were HR staff dealing with personnel evaluation &
grievance?
Legitimate Educational Interest
• FL (LOCAL)
• “Need to Know” Test
• Access to documents can be through a
subpoena
• Redaction of confidential portions of student
information
• Consistent with Everton v. Round Rock ISD,
TEA Dkt. No. 070-R2-1091 (Comm’r Dec.
1996)
Everton v. Round Rock ISD, TEA Dkt. No.
070-R2-1091 (Comm’r Dec. 1996)
• Termination case with a laundry list of conduct – none of which was
found to be good cause for termination EXCEPT
• Tape recording parent teacher conference
• Contained personally identifiable information
• Maintained by the District
• Education record – limited disclosure
• Remember what context the parent has consented to the use of the
record
• Release of tape-recording also violated Code of Ethics and Standard
Practices as a Breach of Student Confidentiality
• Alone = Good Cause to terminate
Subpoenas
• Always notify records
custodian (or your
immediate supervisor) if
your school records are
subject to a subpoena
• Subpoena Duces Tecum
• Advance Notification
Requirements
• Letter to Ellinger, 13FAB 28
(FPCO 2009)
FERPA Broadly defines “Law
Enforcement Record”
• Not just about content
• Created by law enforcement
• Created for law enforcement purpose
• Maintained by law enforcement unit
• If law enforcement record then it is NOT a FERPA protected
education record
• AND may be disclosed to 3rd parties without parental consent
• No FERPA rights for parents (rt to inspect, amend, etc.)
• Also subject to TPIA!
Law Enforcement Record or
Education Record?
• Teacher observes student who appears to be sick and about
to vomit. He sends her to nurse who evaluates and
determines that student is under the influence of a chemical
substance.
• Nurse sends an internal e-mail to assistant principal
• Later, it is learned that the student purchased prescription
drugs in the B Hall bathroom that same day and that a group
of students are dealing drugs in bathroom during class.
• Legitimate search is made. Evidence is revealed. Arrests are
made.
• E-mail from nurse is requested by both parties.
Which is Which?
• Nurse’s report – Education Record
• Even after provided to law enforcement unit
• Not subject to TPIA
• Other documentation gathered by law enforcement unit
= Not education record
• Information from law enforcement records can be shared
with outside agencies
• How can education records be shared?
When Can Information in Student
Records Be Disclosed?
• Can be disclosed to school officials in other schools who
have a legitimate educational interest in the student
• When Subpoenaed
• Health and Safety Emergency Exception
– 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.
Health and Safety Emergency
• Another exception to FERPA
• Requires Imminence
• No blanket release of information from student’s education
records
• Consider the following when determining whether H & S
emergency exists:
– Immediacy,
– Magnitude and
– Specificity of the information concerning the emergency
Health & Safety Emergency
• In an emergency, FERPA permits school officials to
disclose education records without consent, including
personally identifiable information from those records, to
protect the health or safety of students or other individuals.
• At such times, records and information may be released to
appropriate parties such as law enforcement officials,
public health officials, and trained medical personnel. See
34 CFR § 99.31(a)(10) and § 99.36.
• This exception is limited to the period of the emergency
and generally does not allow for a blanket release of
personally identifiable information from a student's
education records.
Why Disclose?
• The Department of Education has stated:
• To avert or diffuse serious threats to the safety or health of a
student or other individuals.
• Typically = law enforcement officials, public health officials,
and trained medical personnel
• But “appropriate parties” = parties whose knowledge of the
information is necessary to provide immediate protection of the
health and safety of the student or other individuals.
• What should be documented?
• Explanation of the emergency nature of the disclosure should
be documented and maintained in the event that a complaint to
the FPCO regarding a FERPA violation is made.
• Family Policy Compliance Office telephone number is 202-2603887
So What Meets This Exception?
• Special education director discloses information to
student’s doctor, without first obtaining written parental
consent
• Protocol for Diabetes-Hypoglycemic Reaction for Johnny
Smith
• Parent complained
• Health & Safety Emergency?
• Irvine Unified Sch. Dist., 23 IDELR 1077 (FPCO 1996)
Each Set of Circumstances Matters!
• Student going into what appears to be a diabetic coma
• Medical personnel arrive on scene
• School nurse discloses information from IHP
• Parents allege improper disclosure
• Health and Safety Emergency?
• Letter re: Pioneer Sch., 11 FAB 17 (FPCO 2007)
• “The District should also document their analysis of why an
emergency exists.”
– Presentation by Leroy Rooker, Director of FPCO, July 16,
2002
Proposed Regulations Regarding Health
& Safety Emergencies
• Proposed language removes strict construction of
exception
• Adds provision that district may take into consideration
the totality of the circumstances pertaining to a threat to
the safety or health of a student or other individuals
• Articulable & significant threat = disclosure is okay
• To any person whose knowledge of the info. is
necessary to protect
How Does District Defend Position?
• Need a rational basis for the determination
• DOE has stated that it will not substitute its judgment for
school district’s judgment
• Their evaluation will not involve substitution of judgment
• So…much needed flexibility BUT
• Documentation is KEY
Sole Possession Records
• Little to go on to assist in defining this term
• Kept in sole possession of maker; used as personal memory
aid; not accessible or revealed to anyone except temporary
substitute
• Right to withhold records using this exception is the District’s
rather than employee’s
• Intent to share documents is key –
• Where they are kept which = just one component
• However, left where others can view = Not sole possession
• Affirmative duty on record possessor
• Access to computer terminal….
Release or Don’t Release?
• District is involved in lawsuit with teacher who abused children
in class. District hires outside psychologist to interview
children. Parents agree knowing that this will help terminate
teacher. Any information related to need for therapy was
agreed to be shared. Parent later requests access to notes of
outside psychologist.
• Pyschologist says no – sole possession records. He kept
notes at home.
• Not enough. At outset, notes were intended to be shared with
others pursuant to district’s agreement with parents.
• Additionally, any right to bar access belongs to district – not
outside psychologist.
Personal Knowledge or Observation
• Important to remember that
information should not
derive from information
contained within education
record
• “Still doesn’t have
immunizations.”
• “Has been on X medicine
entire year.”
• “Appeared groggy and
lethargic when I observed
her this morning”
Directory Information
• Name, address, phone
number, etc.
• “Opt out” opportunity
• State law requires more
• Specific type point
• Specific language
Individuals With Disabilities Education
Improvement Act (IDEIA)
• Parents must be afforded
opportunity to inspect and
review all education records
with respect to….provision
of FAPE (34 CFR 300.501)
• E-mail notices are
specifically mentioned in
statute (34 CFR 300.505)
Letter re: Vermont Immunization Registry,
105 LRP 25701 (FPCO 2005)
• State Health Dept wanted to
create a centralized database
• FERPA applies -- school nurses
cannot disclose to the registry
the immunization information
w/o prior written consent
• Health & Safety Emergency
Exception does not apply
• “To prevent or control an
outbreak or epidemic of
measles, rubella, mumps, polio
or other serious infectious
disease that may cause injury or
death.”
Health Insurance Portability and
Accountability
• Addresses electronic
transmission of Protected
Health Information (PHI)
• Specifically excludes
education records covered by
FERPA
• Immunization records
• Student health records – if
not education records under
FERPA, and if transmitted
electronically, school nurses
and health department should
follow HIPAA rules.
More HIPAA…
• School based health clinics
run by outside entities
• Medicaid. A district that
files Medicaid claims
electronically, including
billing and eligibility
information, must abide by
HIPAA regulations for all
transmissions not covered
by FERPA.
• Paper claims are not
covered by HIPAA.
Medicaid Billing:
• Patients have a right to know to whom their information
was disclosed up to six years after the disclosure.
• If a school district is a covered entity, the district must
give out a notice of privacy practices to parents of
students whose health information is submitted
electronically.
• Notice of Privacy Practices – Must Send if you are
“Covered Entity”
• Covered Entity = transmits individually identifiable health
information electronically
What About Destruction of Records?
• Records retention laws apply
• Federal requirement that recipients of federal funds
retain records for compliance reviews
• At least three years after the completion of the activity for
which the funds are used
• No other real instructions – state and local decisionmaking
• Texas Records Retention – SD (LOCAL)
Local Schedule SD
• Gov’t Code 441.158
• Mandatory minimum
retention periods
• No disposal prior to
expiration of retention
period
• E-mails & other electronic
data are public records
• Even if confidential!
Retention of Computer Records
• Electronically stored data used to create, in any manner,
a record or the functional equivalent of a record as
described in this schedule must be retained, along with
the hardware and software necessary to access the
data, for the retention period assigned to the record,
unless backup copies of the data generated from
electronic storage are retained in paper or on microfilm
for the retention period
• Texas State Library and Archive Commission
• Criminal Penalties & Fines for early destruction –
– Tex. Gov’t Code § 552.351
Part 5 – Health Records
• Accident Reports – 5 yrs or
2 yrs after age 18
• Activity & Statistical reports
(daily and other periodic
activity reports compiled by
school nurse or nurse
extenders related to student
health matters)-3 years
• Correspondence with
Parents or Guardians
concerning student health
matters – 2 years
• Cumulative Health Card –
DOW + 2 yrs
• Emergency Cards – US or
until student ceases
enrollment & Exempt from
destruction request
More Health Records:
• Immunization exclusion
documents
• Health Screening docs –
AV after entry on
cumulative record
• Immunization record –
DOW + 2 yrs (retention
note for school nurse
immunizations)
• Reports to Enforcement
Agencies (CPS reports,
communicable disease, dog
bites, drug offenses, missing
children, or sexually
transmitted disease
transmitted to Tx Dept of
Health & Human Service or
local law enforcement and
animal control) – 2 yrs
• Special Health Care Records
• Physician referrals &
reports (AV after entry on • Special medications – 3yrs
cumulative record)
• Parent requests & physician
authorization for specialized
Be Careful When Destroying E-Mails
• Other laws might apply
• IDEA requires notice to
parent prior to destroying
education records
• Prior to e-mail deletion must
notify parents that records
are no longer needed
• 13 FAB 10 (SEA NV 2009)
The End