CONFIDENTIALITY. Right to Know versus Need to Know When HIPPA and FERPA intersect. 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…
Right to Know
Need to Know
When HIPPA and FERPA intersect
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
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
* 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
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
LEA must have criteria for determining
Who constitutes a “school official” (usually any employee, contracted employee, etc)
What constitutes a “legitimate educational interest” ???????
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”
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 ?
Health Concern lists
Lists to Principal
Notes back to teachers
LEA must keep a record of access requests
Individuals who do not require written authorization
School officials with legitimate educational interests
Party with written consent from parent
Specifically protected legal inquiry (subpoena)
Parents can request amendment of records If believed to be:
In violation of the student’s right to privacy
“ A parent must be given the opportunity to inspect and review the student’s educational records.”
Note: Under special education regulations (10-76d-18). Parents have the right to a free copy of “any educational records relating to their child.”
LEA decides whether or not to amend
If LEA doesn’t amend?
Parent has a right to hearing
If parent loses hearing?
Parent may place statement in record commenting on disagreement
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.
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
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
Sexually Transmitted Diseases
Any person in the state of CT, regardless of the person’s age, can receive confidential birth control.
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
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
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
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 ?
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)
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
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?
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
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?
Sexual activity not reportable to DCF unless other circumstances
Entitled to Birth Control at 14
Carry to Term
17yo not reportable
20 yo not reportable
23 yo reportable
Need To Know
Right To Know
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: F.A Davis.