In conjunction with the new school year, the U.S. Department of Education issued guidance, in the form of a “Dear Colleague” letter, to higher education institutions to remind them of FERPA’s requirements as they relate to the provision of medical and mental health services to students in higher education institutions.
The letter outlines the protections afforded to student medical records when litigation occurs between the institution and the student. In particular, institutions should not share student medical records with the institution’s attorneys or courts “unless the litigation in question relates directly to the medical treatment itself or the payment for that treatment, and even then disclose only those records that are relevant and necessary to the litigation.”
The letter further outlines the exceptions under which student medical records may be disclosed without consent of the student under FERPA. They include:
- To school officials, including professors, administrators, and legal counsel, provided the institution has determined that those officials have a legitimate educational interest in the records. The exception only allows school officials with the function and responsibility to view only the records that are necessary to fulfill a professional responsibility.
- Campus counselors and mental health professionals may disclose student health records to campus threat assessment teams about a threat to a student’s safety or the safety of others to prevent or respond to violence on campus.
- Attorneys representing institutions in legal proceedings if the medical treatment or payment for that treatment relates directly to the litigation, and only then, the minimum amount necessary. Otherwise, the records should not be disclosed without consent or a court order.
- In response to a subpoena or court order, but the disclosures should be limited to only those records that are relevant and necessary to the litigation.
To appropriate parties if the student “poses an articulable and significant threat to self or the health or safety of other individuals, including law enforcement, public health officials, trained medical personnel, and parents” the information disclosed should only be those necessary to protect the student or others.