CONFIDENTIALITY

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… • 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…

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…

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

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

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 andtransmit 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

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 sharingwithout consent • to other school officials iffor “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

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/community 14

PERMITTED DISCLOSURES • External releasewithout 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

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 (10-76d-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 If LEA doesn’t amend? Parent has a right to hearing 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

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…

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

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: F.A Davis.

Q & A

CONFIDENTIALITY