HIGHLIGHTS:

  • In determining when higher education institutions are allowed to use student medical records other than for a student's healthcare, the institutions have to balance students' privacy interests, including federal rights under FERPA, against legitimate institutional needs.
  • Too much access may facilitate misuse or discourage students from seeking campus-based medical services, while too little access may deprive an institution of information important to satisfying a legal obligation or responding effectively to a health or safety emergency.
  • Student medical records may be reviewed by school officials fulfilling their duties on threat or behavior assessment teams.  

When is it legal and proper for higher education institutions to use student medical records other than for a student's healthcare? In answering that question, institutions have to balance students' privacy interests, including federal rights under the Family Educational Rights and Privacy Act (FERPA), against legitimate institutional needs. Finding the right balance is not always easy, as highlighted by recent well-publicized cases. Too much access may facilitate misuse or discourage students from seeking campus-based medical services, while too little access may deprive an institution of information important to satisfying a legal obligation or responding effectively to a health or safety emergency.

FERPA and Commonly Used Exceptions

In an effort to aid institutions in striking the right balance between privacy rights and legitimate institutional needs, the U.S. Department of Education (DOE) issued new guidance on this hot topic in a "Dear Colleague" letter, dated Aug. 18, 2015. The DOE was careful to note that its letter "does not create or confer any rights for or on any person, nor does it impose any requirements beyond those required under applicable law and regulations." Rather, the letter is intended to clarify the DOE's interpretation of the applicable FERPA regulations as well as its views on the proper use of student medical records in certain situations to avoid unnecessary risk of harm to students.

FERPA generally prohibits disclosure of personally identifiable information (PII) from a student's education records absent signed and dated consent. Consent is not required under certain limited exceptions. The Dear Colleague letter addresses four of the more common exceptions:

  • treatment records
  • school officials
  • litigation
  • health or safety emergencies

Regardless of which exception applies, the DOE cautions that institutions "only should disclose the minimum amount of PII necessary for the intended purpose." The DOE "recommends that institutions give great weight to the reasonable expectations of students that the records generally will not be shared, or will be shared only in the rarest of circumstances, and only to further important purposes, such as assuring campus safety."

Treatment Records

Medical treatment records are not subject to FERPA, and no written consent is required for their disclosure provided that three criteria are met. The records must be:

  1. directly related to a student at least 18 years old attending a post-secondary institution
  2. made or maintained by a recognized medical professional or paraprofessional acting in their professional capacity
  3. made, maintained or used only in connection with treating the student

This exception to the consent requirement for treatment records does not apply if an institution uses the records for any purpose other than the student's medical treatment. Treatment records used for other purposes become education records subject to FERPA.  

School Officials and Behavior Assessment Teams

FERPA permits the disclosure of student medical records without consent to school officials, including faculty, administrators and legal counsel, provided that the institution has determined that those officials have a "legitimate educational interest" in the student records. The DOE interprets this exception to require a determination that the school official needs "to review an education record in order to fulfill his or her professional responsibility." This exception would permit, for example, a disability services officer to review medical records related to a student's disclosed disability – but not records of unrelated health issues.

The school official exception is critically important to the effective functioning of campus threat or behavior assessment teams. The designated school officials may properly share information from student medical records to fulfill their professional responsibilities on threat or behavior assessment teams. If, for example, "a campus counselor or mental health professional has concerns about a student's safety (or the safety of others) due to behavior that is harmful or escalating, he or she may share education records, including medical records, with the threat assessment team under the school official exception." The DOE states further that if the team determines that an "articulable and significant threat" has developed, the institution may make further disclosures under the health or safety emergency exception discussed below.

Health or Safety Emergency

Institutions may review and use student medical records when they have determined that a student "poses an articulable and significant threat to self or the health or safety of other individuals." According to this exception, school officials may disclose student medical records to "any person whose knowledge of information from those records will assist in protecting the student or others from the threat," including law enforcement, healthcare professionals and parents. In making this determination, the DOE "generally defers" to the institution's judgment.

Litigation

FERPA does not require consent before an institution may disclose to a court or government agency student records that are relevant to a lawsuit by or against the student. The DOE advises that institutions should use this exception only if the lawsuit "relates directly to the medical treatment or the payment for such treatment." The more complicated question is when is it proper for institutions to access student medical records to address issues concerning the student's credibility or claims for emotional distress damages in lawsuits involving alleged discrimination, harassment and other claims not directly related to the provision of medical treatment. In those circumstances, the DOE advises generally that attorneys representing institutions should not access student medical records without written consent or a court order. Institutions are well-advised to seek legal advice in deciding when to use student medical records without the student's consent or a court order.

While not breaking any new ground, this latest Dear Colleague letter does provide helpful guidance for complying with federal law when determining whether and under what circumstances to use personally identifiable information from student medical records. In addition, institutions must also consider the impact of state privacy laws and the professional ethical obligations of its healthcare providers. Balancing those various interests will continue to be challenging for all involved.