HIPAA or FERPA or Not
Author(s): Rhonda Williams, Ed.D., LPC, NCC
July 1, 2010
The education system has a plethora of acronyms that can seem daunting. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Family Educational Rights and Privacy Act (FERPA) are only two of these acronyms with which all educators and parents must contend. However, there seems to be much confusion about the parameters of these laws. Let’s briefly clarify some of the misperceptions of both HIPAA and FERPA as they relate to school counselors. Please consult with your school attorney for any further clarification.
It’s important to understand the actual intention of these laws. HIPAA is intended to protect the privacy of a medical patient’s identifiable health records including electronic health care transactions. It gives patients the right to inspect their own medical records and request amendments to medical records. This law also restricts release of confidential communication with the patient or the patient’s medical records. To be in compliance with HIPAA, students’ health information must be protected.
Regarding mental health and counseling issues, the application of HIPAA is directed to psychotherapy notes. The Privacy Rule (45 C.F.R. § 164.502(b) those with access to medical records to “make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of disclosure.”
HIPAA covers different aspects of educational records than FERPA covers. Thus, the notes kept by the school counselor don’t necessarily apply to HIPAA regulations unless the release of a student’s health records from outside the school setting are somehow involved.
FERPA, on the other hand, provides protection of students’ educational records and is specific to education institutions that receive federal funds. Health records from the school nurse, as a school-affiliated program, are answerable to FERPA regulations. Other records subject to FERPA include special education records and any services provided to students under Individuals with Disabilities Education Act. The term “education records” is defined as (1) directly related to a student and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. (34 CFR§ 99.3).
The U.S. Department of Education and U.S. Department of Health and Human Services published “Joint Guidance on the Application of the Family Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) To Students’ Health Records,” which clarifies some of the convoluted regulations existing between HIPAA and FERPA. According to this document, generally speaking, HIPAA doesn’t apply to elementary and secondary schools. Even if HIPAA did apply to the typical school setting, it clearly states that if a teen presents a danger to self or others, a good faith report is appropriate when (1) the disclosure is necessary to prevent or lessen the threat and (2) the parent or other person(s) is reasonably able to prevent or lessen the threat. The disclosure also must be consistent with applicable law and standards of ethical conduct. See 45 CFR § 164.512(j)(1)(i).
Neither FERPA nor HIPAA prevents a school counseling professional from disclosing “treatment notes” to law enforcement, family members or others when the school counselor “has a good faith belief that the disclosure: (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is reasonably able to prevent or lessen the threat. This may include, depending on the circumstances, disclosure to law enforcement, family members, the target of the threat or others who the school counselor believes, in good faith, can help mitigate the threat. The disclosure also must be consistent with applicable law and standards of ethical conduct. See 45 CFR § 164.512(j)(1)(i).
When considering treatment notes it is also important to understand that once these notes are disclosed, they technically cease to be treatment records and are now considered educational records. This, then, makes these records susceptible to FERPA regulations.
The above-mentioned scenario doesn’t indicate if the school counselor has “treatment notes” on Tom or not. However, the school counselor needs to consider several ethical aspects of this scenario before continuing with disclosure.
The professional school counselor must consider whether this information constitutes confidential information. Even if Tom has disclosed personal relationships in any school counseling sessions, it does not meet any criteria of educational records under FERPA nor does not fit the regulations for HIPAA, since it is not related to health records.
It would seem that the caseworker is attempting to help the student, who has been affected by the illegal acts of another student’s parents. However, it may be important for the school counselor to verify the legitimacy of the caseworker’s agency and purpose of the caseworker’s involvement.
It’s also important for the school counselor to speak with Tom’s parents regarding the incident and subsequent hospitalization. They may want the caseworker to know who Tom’s friends are and may be able to provide information about their son’s friends themselves. If the school counselor feels uncomfortable about disclosing this list of Tom’s friends, other faculty members are probably available to give this information to the caseworker, as this information is probably common knowledge.
The school counselor needs to also evaluate the underlying personal reasons this disclosure seems so difficult personally. Is there a concern that it will negatively affect other students with whom the school counselor has a counseling relationship? Or could it be that the school counselor is avoiding getting involved? Whatever the reason, this self-evaluation may produce other ethical and moral considerations.
A school counselor’s job is never black and white, but it is less obtuse when considering the prime ethical directive of acting in a student’s best interests. Although the ASCA Ethical Standards for School Counselors speak to the issue of confidentiality, it is important to remember that these issues lie in the hands of the student and his parents, not necessarily with the school counselor.
Clearly, the HIPAA and FERPA regulations can be somewhat confusing. However, it is important to use these laws for the benefit of protecting the student and their families. These laws aren’t for hiding behind to avoid difficult decisions.
Rhonda Williams, Ed.D., LPC, NCC, is an assistant professor at the University of Colorado at Colorado Springs and the co-chair of ASCA’s Ethics Committee. She can be reached firstname.lastname@example.org.
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LEARN more about the differences between HIPAA and FERPA as they pertain to students’ health records.