U.S. Department of Education Issues Guidance on Student Medical Records

by Robinson+Cole Data Privacy + Security Insider

On September 14, 2016, the Department of Education (DOE) issued a “Dear Colleague Letter” to provide guidance on the application of the Family Educational Rights and Privacy Act (FERPA) to the disclosure of student medical records in the context of litigation.

FERPA generally prohibits a school from disclosing personally identifiable information from a student’s education records without consent, unless an exception applies. Education records are defined as records that: (1) directly relate to the student, and (2) are maintained by an educational agency or institution or by a party acting for the agency or institution. Medical records (including mental health counseling records) are generally considered to be included in the definition of education records.

Exceptions under which medical records may be disclosed without student consent under FERPA include:

A. School Officials with a Legitimate Educational Interest

FERPA allows school officials, including professors, administrators, and legal counsel, to access education records, including medical records, without consent if the school has determined that the official has a legitimate educational interest in the records. A school official has a legitimate educational interest if the official needs to review an educational record in order to fulfill his or her professional responsibility.

Under FERPA, attorneys representing institutions in legal proceedings generally function as school officials. However, institutions should not conclude that their attorneys have a legitimate educational interest in accessing those records, without a court order or the student’s written consent, unless the litigation at issue directly relates to the medical treatment itself or payment for that treatment. DOE analogizes this exception to the HIPAA Privacy Rule concerning litigation between a covered health care provider and a patient.

B. Disclosure to a Court without Court Order or Subpoena

FERPA regulations generally permit a school to disclose to a court education records that are relevant to its case against a student. DOE indicates, however, that this general rule should be “read in light of the special sensitivity of [medical or counseling records] and the importance of students being able to obtain timely on-campus medical treatment.” Similar to the exception for a legitimate educational interest, DOE analogizes this exception to the standard articulated in HIPAA guidance, and states that schools should use the litigation exception to disclose education records only if the lawsuit directly relates to medical treatment or payment for such treatment.

DOE also advises that if a student’s medical records are likely to be relevant to a reasonably anticipated, threatened, or pending lawsuit, an institution and its counsel may have a legal duty to place a “litigation hold” on the student’s medical records. DOE advises that an institution or its counsel should instruct the treatment provider to preserve the student’s medical records and, if necessary, electronically capture or take physical custody of those records.

C. Health or Safety Emergency

FERPA permits a school to disclose a student’s education records to appropriate parties if the student poses an “articulable and significant threat” to themselves or others. A school official should be able to explain their reasonable belief as to why the student met this standard. The education records, including medical records, can be disclosed to any person whose knowledge of the information from the records will assist in protecting the student or others. However, school officials must also take care to disclose only the information from education records that is necessary. DOE advises that in many cases providing the actual records is not necessary or critical when a counselor’s summary of the relevant and necessary information from those records is sufficient.

DOE notes that it has long encouraged institutions to implement a threat assessment program and that none of the guidance in this “Dear Colleague letter” diminishes the sharing of records and information allowed under FERPA to prevent or respond to violence on campus.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Robinson+Cole Data Privacy + Security Insider | Attorney Advertising

Written by:

Robinson+Cole Data Privacy + Security Insider

Robinson+Cole Data Privacy + Security Insider on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.