The U.S. Department of Education and the U.S. Department of Health and Human Services recently issued updated guidance regarding the Family Educational Rights and Privacy Act (“FERPA”) and the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as applied to student health records. The updated guidance addresses various situations when student health information may be shared by an educational agency or a health care provider without the written consent of the parent or eligible student under FERPA or the HIPAA Privacy Rule.
For example, the guidance explains that HIPAA allows a health care provider to disclose protected health information (“PHI”) about a student to a school nurse or physician for a number of purposes without parental or student authorization, including discussing a student’s medication and health care needs with a school nurse who will administer such medication or otherwise provide health care to the student. Also, the guidance provides that if a student presents a danger to himself/herself or others, FERPA permits that personally identifiable information (“PII”) from the student’s education records may be disclosed to appropriate parties, such as police, in connection with a health or safety emergency, without the consent of the parent or eligible student, as long as the information is necessary to protect the health or safety of the student or others. However, the guidance also outlines that FERPA most likely does not allow an educational agency to disclose PII to the National Instant Criminal Background Check System (“NICS”) without written consent.
The guidance further details various factual scenarios that would warrant such permissible disclosure of students’ PHI and PII, and it also addresses additional situations where the question of whether to disclose such student information may arise, such as instances where a student’s mental health condition or substance abuse disorder are at issue.
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