FERPA

[DTY]

Has anyone seen this article? I never knew this could happen, and since I've worked for both universities I attended, I received FERPA training at both and never knew this was a possibility. It's scary that there's no expectation of privacy or even that in the case of litigation only the relevant records would be available to the institution. Some links:

 

The first story I saw: http://jezebel.com/university-of-oregon-uses-a-womans-medical-records-agai-1690452569

 

And the original NPR story, that one links: http://www.npr.org/blogs/health/2015/03/09/391876192/college-rape-case-shows-a-key-limit-to-medical-privacy-law

 

And background on the case, that the NPR story links: http://edition.cnn.com/2015/01/09/justice/university-of-oregon-title-ix-lawsuit/)

 

For those of you who don't want to or can't click on the link, a little tl;dr:

 

A student at the University of Oregon is suing the school for Title IX violations over the "mishandling of her assault" (direct quote, not assuming that UO did not mishandle, just for clarity). The student was gang-raped by three athletes who were subsequently removed from their team and the university, but one of the players had a prior history of assault which the recruiting coach was aware of... however, it appears UO took some time to take action on the case (the assault occurred in March but players were not disciplined until May) and no criminal charges were ever filed against the players. The issue that has been raised in this suit is that UO has complete access to her therapy records because of FERPA, without the right to have them reviewed in camera:

 

"I would think, in almost any case anywhere in the country, in a fear and emotional distress claim, those records would be relevant, and you would get them through some process," McDonald says.

 

Under FERPA, at a health clinic run by a university or college, the school has a legal right to get access to student medical records — if they're relevant for a legal defense. That may come as a surprise to anyone who assumes that doctor-patient privilege is the same regardless of where the care is received.

 

Gonzaga Law School professor Lynn Daggett, another FERPA specialist, agrees that the university is within its rights. The situation allows universities to avoid an important legal process, she says, simply because the therapist is a university employee.

 

"The way the school would access the records in the situation with a private therapist," Daggert says, "is that during discovery, before trial, they would ask her to voluntarily agree — or issue a subpoena for them. She would have every right to make a motion to the court to quash or modify the subpoena — have the court look at her medical records in camera, which means in secret in the judge's chambers — and have the court sort through what appropriately would be shared with the school and what would not be." (NPR)

 

I ask - not so much because of the rape issue (though, I think sexual assault on campus and how victims are treated is something that needs to be addressed), but because of the FERPA issue and its implications for seeking medical or mental care at (the usually more affordable) university facilities. Thoughts?

[Eigen]

It's a very interesting issue, and this is the first time I'm aware of a University has used FERPA to access a students medical records- there's generally an imaginary wall between medical/counseling records and other parts of the University. 

 

It's not as absolute as non-University healthcare, as it's intended that the administration could get access to help with a student experiencing problems, be proactive, etc. 

 

Using it for a legal defense, however.... That's difficult. They're saying FERPA gives them the right to access medical records if they're relevant for a legal defense, which seems to be a stretch to me. 

 

There's a good discussion on this on the Chronicle forums that's more detailed, for sure. 

 

My bet is this makes it up to a circuit court, at least, and the precedent gets slapped on that this is not appropriate.

[TakeruK]

No matter how it may play out in later courts, I still think this is very worrying that it has even happened. Personally, I have always chose to use off-campus medical providers whenever possible because I don't want the possibility of my health records being connected to my student record. Luckily, my student insurance covers me the same whether I use on-campus or off-campus facilities.

 

Our graduate student organization talked about this issue earlier this month and we are trying to determine the best course of action. Maybe ask the school to waive their FERPA rights to access medical records? (Unlikely this will work). We probably will go the route of informing students this can happen and letting people make their decisions.

 

I can also imagine a lot of other issues that can come from this. For example, a student who is seeking mental health treatment/services from the counseling center later sues the school because of some mistreatment. Would the school be able to use the student's medical records against them? This is extremely concerning, to me, as it may compromise our ability to seek the best care for ourselves. Like the author of one of the articles states, to me, this is a misuse of FERPA and just like applicants waive their FERPA rights to view LORs, I think schools should waive their FERPA rights to access medical records. Or, FERPA should be modified to properly protect student medical records!

[FacelessMage]

I don't know much about how this stuff works in the US (I only have a basic knowledge of FERPA), but this doesn't sound ethical to me? I would assume that something like mental health records would be protected information. It sounds super shady, and would definitely discourage me from ever seeking health services on a university campus if I lived in the US (and I say this as someone who is considering grad school in the US). 

Edited March 10, 2015 by FacelessMage

[rising_star]

It's definitely not the only case where universities/colleges use FERPA to get medical records. I know there has been talk of doing that regarding the ongoing measles and mumps outbreaks in the USA, because the university has an interest in knowing if an unvaccinated student reports to the health center with symptoms and/or gets diagnosed with the disease. I'm not up to date on the Oregon situation but I know it's a case we'll be discussing around my institution in the coming weeks.

[Eigen]

So a bit more reading, and it seems like this was a pre-emptive move by the University, whereas if they waited it would have been legal.

 

Cali, for instance, allows employers to access records of treatment that are otherwise confidential IF the persion suing them alleges issues with the treatment. Sounds like the University was preparing for that, and making sure their ass was covered.

 

It's still a violation, and hopefully will be appropriately sanctioned.

[Crucial BBQ]

I don't know much about how this stuff works in the US (I only have a basic knowledge of FERPA), but this doesn't sound ethical to me? I would assume that something like mental health records would be protected information. It sounds super shady, and would definitely discourage me from ever seeking health services on a university campus if I lived in the US (and I say this as someone who is considering grad school in the US). 

I worked as a student liaison representing the student body to an administrative group that handled student welfare and retention.  For what-ever reason FERPA became a hot issue one year, and the dominant subject of that year's work.  

 

Medical and health records are not supposed to be a part of a students [university] record, and as such, cannot be accessed through FERPA.  However, by my understanding, they medical/health records can be accessed without the student's consent if:

 

-Public health/safety concerns.

-Something vaguely in the line of "...in the University's best interests".

 

On the one hand, the situation described in the OP is a public health and safety concern but it seems that the University used "in their best interests" to gain access to the records in preparations of legal action.  

 

*highlighted to indicate I do not have a complete understanding of FERPA. 

Edited March 18, 2015 by Crucial BBQ