Presentation on theme: "Confidentiality & Communication Issues"— Presentation transcript:
1 Confidentiality & Communication Issues Wesley E. JohnsonEscamilla, Poneck & Cruz, LLP
2 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.
3 Laws: Texas Statutes Federal Laws Caselaw from 5th Circuit and other circuitsAttorney General OpinionsCommissioner of Education OpinionsCertification Boards
4 Generated and Maintained in School Setting - Likely to be Education Records Professionals in school setting must therefore be familiar with laws related to education recordsCommon ideas behind all related lawsConfidentialityParental Access
5 Numerous Laws Involved Here: Texas Public Information Act (TPIA) – Tex. Gov’t Code, Ch. 552FERPA (Family Educational Rights and Privacy Act) – 20 USC 1232gIndividuals With Disabilities Education Improvement Act (IDEIA)HIPAA – Health Insurance Portability and Accountability ActRecords Retention Laws
6 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 ExceptionInformation in a student record at an educational institution funded wholly or partly by state revenue = confidentialBut 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.
7 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 providedNo need for written consent if:School officials with legitimate educational interestDirectory InformationSole Possession Records
8 Family Educational Rights and Privacy Act (FERPA), 20 USC 1232g Intended to protect rights of students and parentsThree basic rights:Right of parent to inspect and review education recordsRight to challenge & require amendment of education recordsRight to require written consent prior to disclosure of personally identifiable information education records
9 FERPA Defines “Parents” Natural parentGuardianIndividual acting as parent in the absence of a parent
10 Defining “Educational Records”: Records Pertaining Directly To Student;ANDMaintained By Or On Behalf Of School District
12 “Educational Records”= Info Recorded In Any Way: PrintHandwritingComputer MediaVideo or Audio TapeFilmMicroficheMicrofilm
13 Right to Inspection Includes Electronic Data Cannot answer – no because it is only on my computer1996 amendment to definition of “record” to add term “computer media”How to inspect is local decisionPrint a hard copy?Otherwise allow for review…
14 Who is the District’s Custodian of Records? Look to FL (LOCAL)Typically the principal is custodian of records for currently enrolled studentsSuperintendent – those having withdrawn or graduatedStudent handbook has information.
15 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 microficheTEC – Parent entitled to access to all written records concerning student including…(8) health and immunization records
16 Internet AccessDistrict 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 recordsOpportunity to inspect and review within 45 days is keyLetter re: Broward County Pub. Schs., 11 FAB 18 (FPCO 2007)
17 What if Request is Made Via E-mail? Letter to Anonymous, 11 FAB 7 (FPCO 2007)Parent ed request for student recordsSafeguards can be used to prevent unauthorized disclosure to 3rd partiesDistrict merely requested additional identifying information prior to sending records
18 School Health and Medical Records Copies of medical records outside school setting become education records when submitted to school and in school’s possessionContent is not issueMaintenance is the issueScreenings or examsAssistance in school health officeResulting documentation – education record to extent that it is maintained by district
19 What if Student Wants to Prevent Review of Student Records by Parents? Law has no waiver componentParents may review until 18 years of ageExceptions?Suspected abuse?Counseling?HIV Status (Health & Safety Code )Drug and Alcohol Patient Treatment?
20 Parent Right to Inspect Counseling Records Texas Attorney General Opinion JC-0538 (2002)Apparent conflict between TEC Health and Safety CodeOnly under narrow circumstances = records may be withheldOnly LPC have privilege
21 Parent Consent Must be in Writing… 2004 RegulationSigned and dated written consent can be in electronic format if:It IDs & authenticates particular person as the sourceIndicates the person’s approval of the information contained in the consentTechnology neutral in time of technological change
22 Countdown of the 12 Ways that Student Records May be accessed Without Parental Consent:
23 #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.
24 #6. To organizations conducting educational studies. #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.
25 #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
26 Additionally -- some records are specifically not education records Sole Possession recordsLaw Enforcement RecordsGrades on Peer Graded PapersSpecifically designated postsecondary recordsRecords created after student no longer in attendance and not related to student’s attendance
27 #1 To Teachers or Other District Officials With a Legitimate Educational Interest School Officials= person employed by the school as an:Administrator,Supervisor,Instructor, orSupport 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); orA 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.
28 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; andIs subject to FERPA requirements governing use and redisclosure of personally identifiable information from education records
29 What About Outside Consultant Hired to Consult With Staff Regarding Student? Okay.Contracted with District to perform official taskHad “legitimate educational interest”Acting within the duties of school officialLetter to Anonymous, 11 FAB 5 (FPCO 2007)Proposed regulations designed to clarify this
30 OutsourcingExpands “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 performOutside party must be under direct control of agency or institution and subject to same use and redisclosure rules regarding education recordsAnnual FERPA notice must specify outside partiesDistrict remains responsible for their actionsOnly question…what is “direct control”?
31 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 BUTNot permitted to disclose information (even names) contained in education records w/o written parental consentBE CAREFUL!
32 McGilvray v. Boyd ISD, TEA Dkt. No. 185-R2-597 (Comm’r Dec. 1997) Juvenile probation office to speak to 6th gradersPeer pressure, gangs, drugs and alcoholTeacher 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
33 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
34 Austin ISD v. Cruz, TEA Dkt. No. 024-LH-1109 (Comm’r Dec. 2010) Good Cause for termination of contractWonderful evaluationsEmployed 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?
35 Legitimate Educational Interest FL (LOCAL)“Need to Know” TestAccess to documents can be through a subpoenaRedaction of confidential portions of student informationConsistent with Everton v. Round Rock ISD, TEA Dkt. No. 070-R (Comm’r Dec )
36 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 EXCEPTTape recording parent teacher conferenceContained personally identifiable informationMaintained by the DistrictEducation record – limited disclosureRemember what context the parent has consented to the use of the recordRelease of tape-recording also violated Code of Ethics and Standard Practices as a Breach of Student ConfidentialityAlone = Good Cause to terminate
37 SubpoenasAlways notify records custodian (or your immediate supervisor) if your school records are subject to a subpoenaSubpoena Duces TecumAdvance Notification RequirementsLetter to Ellinger, 13FAB 28 (FPCO 2009)
38 FERPA Broadly defines “Law Enforcement Record” Not just about contentCreated by law enforcementCreated for law enforcement purposeMaintained by law enforcement unitIf law enforcement record then it is NOT a FERPA protected education recordAND may be disclosed to 3rd parties without parental consentNo FERPA rights for parents (rt to inspect, amend, etc.)Also subject to TPIA!
39 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 to assistant principalLater, 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.from nurse is requested by both parties.
40 Which is Which? Nurse’s report – Education Record Even after provided to law enforcement unitNot subject to TPIAOther documentation gathered by law enforcement unit = Not education recordInformation from law enforcement records can be shared with outside agenciesHow can education records be shared?
41 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 studentWhen SubpoenaedHealth and Safety Emergency ExceptionTo 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.
42 Health and Safety Emergency Another exception to FERPARequires ImminenceNo blanket release of information from student’s education recordsConsider the following when determining whether H & S emergency exists:Immediacy,Magnitude andSpecificity of the information concerning the emergency
43 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 §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.
44 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 personnelBut “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
45 So What Meets This Exception? Special education director discloses information to student’s doctor, without first obtaining written parental consentProtocol for Diabetes-Hypoglycemic Reaction for Johnny SmithParent complainedHealth & Safety Emergency?Irvine Unified Sch. Dist., 23 IDELR 1077 (FPCO 1996)
46 Each Set of Circumstances Matters! Student going into what appears to be a diabetic comaMedical personnel arrive on sceneSchool nurse discloses information from IHPParents allege improper disclosureHealth 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
47 Proposed Regulations Regarding Health & Safety Emergencies Proposed language removes strict construction of exceptionAdds 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 individualsArticulable & significant threat = disclosure is okayTo any person whose knowledge of the info. is necessary to protect
48 How Does District Defend Position? Need a rational basis for the determinationDOE has stated that it will not substitute its judgment for school district’s judgmentTheir evaluation will not involve substitution of judgmentSo…much needed flexibility BUTDocumentation is KEY
49 Sole Possession Records Little to go on to assist in defining this termKept in sole possession of maker; used as personal memory aid; not accessible or revealed to anyone except temporary substituteRight to withhold records using this exception is the District’s rather than employee’sIntent to share documents is key –Where they are kept which = just one componentHowever, left where others can view = Not sole possessionAffirmative duty on record possessorAccess to computer terminal….
50 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.
51 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”
52 Directory Information Name, address, phone number, etc.“Opt out” opportunityState law requires moreSpecific type pointSpecific language
53 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 )notices are specifically mentioned in statute (34 CFR )
54 Letter re: Vermont Immunization Registry, 105 LRP 25701 (FPCO 2005) State Health Dept wanted to create a centralized databaseFERPA applies -- school nurses cannot disclose to the registry the immunization information w/o prior written consentHealth & 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.”
55 Health Insurance Portability and Accountability Addresses electronic transmission of Protected Health Information (PHI)Specifically excludes education records covered by FERPAImmunization recordsStudent health records – if not education records under FERPA, and if transmitted electronically, school nurses and health department should follow HIPAA rules.
56 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.
57 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
58 What About Destruction of Records? Records retention laws applyFederal requirement that recipients of federal funds retain records for compliance reviewsAt least three years after the completion of the activity for which the funds are usedNo other real instructions – state and local decision- makingTexas Records Retention – SD (LOCAL)
59 Local Schedule SD Gov’t Code 441.158 Mandatory minimum retention periodsNo disposal prior to expiration of retention periods & other electronic data are public recordsEven if confidential!
60 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 periodTexas State Library and Archive CommissionCriminal Penalties & Fines for early destruction –Tex. Gov’t Code §
61 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 yearsCorrespondence with Parents or Guardians concerning student health matters – 2 yearsCumulative Health Card – DOW + 2 yrsEmergency Cards – US or until student ceases enrollment & Exempt from destruction request
62 More Health Records: Immunization exclusion documents Health Screening docs – AV after entry on cumulative recordImmunization record – DOW + 2 yrs (retention note for school nurse immunizations)Physician referrals & reports (AV after entry on cumulative record)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 yrsSpecial Health Care RecordsSpecial medications – 3yrsParent requests & physician authorization for specialized health care – end of validity of request or authorization + 2 yrs
63 Be Careful When Destroying E-Mails Other laws might applyIDEA requires notice to parent prior to destroying education recordsPrior to deletion must notify parents that records are no longer needed13 FAB 10 (SEA NV 2009)