The Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects the privacy of a medical patient’s identifiable health records, including electronic healthcare transactions. It gives patients the right to inspect their medical records and request amendments to medical records. This law also restricts the release of confidential communication with the patient or the patient’s medical records.
Scenario: Tom, 16, attended a party where the host’s parents supplied drugs and alcohol. Tom became intoxicated, and his friends rushed him to the hospital. He was diagnosed with alcohol poisoning. A caseworker previously assigned to Tom for other reasons comes to the school to talk to the school counselor about Tom’s hospitalization. The caseworker asked the school counselor who Tom’s friends were since the police were trying to track down which parent might have contributed to the delinquency of a minor. The school counselor refused to give this information to the caseworker, claiming HIPAA prohibited the school counselor from sharing this information.
Regarding mental health and counseling issues, the application of HIPAA is directed to psychotherapy notes. The Privacy Rule (45 C.F.R. § 164.502(b) for those with access to medical records to “make reasonable efforts to limit protected health information to the minimum necessary to accomplish the intended purpose of disclosure.”
HIPAA covers different aspects of educational records than FERPA covers. Thus, the notes the school counselor keeps don’t necessarily apply to HIPAA regulations unless the release of a student’s health records from outside the school setting is somehow involved.
FERPA, on the other hand, protects students’ educational records and is specific to educational institutions that receive federal funds. As a school-affiliated program, health records from the school nurse are answerable to FERPA regulations. Other records subject to FERPA include special education records and any services provided to students under the Individuals with Disabilities Education Act. The term “education records” is defined as (1) directly related to a student and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. (34 CFR§ 99.3).
The U.S. Department of Education and U.S. Department of Health and Human Services published “Joint Guidance on the Application of the Family Education Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) To Students’ Health Records,” which clarifies some of the convoluted regulations existing between HIPAA and FERPA. This document generally states that HIPAA doesn’t apply to elementary and secondary schools. Even if HIPAA did apply to the typical school setting, it clearly states that if a teen presents a danger to self or others, a good faith report is appropriate when (1) the disclosure is necessary to prevent or lessen the threat and (2) the parent or other person(s) is reasonably able to prevent or lessen the threat. The disclosure also must be consistent with applicable laws and standards of ethical conduct. See 45 CFR § 164.512(j)(1)(i).
Neither FERPA nor HIPAA prevents a school counseling professional from disclosing “treatment notes” to law enforcement, family members, or others when the school counselor “has a good faith belief that the disclosure: (1) is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is reasonably able to prevent or lessen the threat. Depending on the circumstances, this may include disclosure to law enforcement, family members, the target of the threat, or others who the school counselor believes, in good faith, can help mitigate the threat. The disclosure also must be consistent with applicable laws and standards of ethical conduct. See 45 CFR § 164.512(j)(1)(i).
When considering treatment notes, it is also essential to understand that once they are disclosed, they technically cease to be treatment records and are now regarded as educational records. This, then, makes these records susceptible to FERPA regulations.
The scenario mentioned above doesn’t indicate if the school counselor has “treatment notes” on Tom. However, the school counselor needs to consider several ethical aspects of this scenario before continuing with disclosure.
The professional school counselor must consider whether this information constitutes confidential information. Even if Tom has disclosed personal relationships in any school counseling sessions, it does not meet any criteria of educational records under FERPA, nor does not fit the regulations for HIPAA, since it is not related to health records.
It would seem that the caseworker is attempting to help the student, who has been affected by the illegal acts of another student’s parents. However, it may be important for the school counselor to verify the legitimacy of the caseworker’s agency and the purpose of the caseworker’s involvement.
It’s also crucial for the school counselor to speak with Tom’s parents regarding the incident and subsequent hospitalization. They may want the caseworker to know who Tom’s friends are and may be able to provide information about their son’s friends themselves. Suppose the school counselor feels uncomfortable disclosing this list of Tom’s friends. Other faculty members are probably available to give this information to the caseworker, as this information is perhaps common knowledge.
The school counselor also needs to evaluate the underlying personal reasons this disclosure seems so difficult personally. For example, is there a concern that it will negatively affect other students with whom the school counselor has a counseling relationship? Or is it that the school counselor is avoiding getting involved? Whatever the reason, this self-evaluation may produce other ethical and moral considerations.
A school counselor’s job is never black and white, but it is less obtuse when considering the prime ethical directive of acting in a student’s best interests. Although the American School Counselor Association (ASCA) Ethical Standards for School Counselors speak to the issue of confidentiality, it is essential to remember that these issues lie in the hands of the student and his parents, not necessarily with the school counselor.
The HIPAA and FERPA regulations can be confusing. However, it is vital to use these laws to protect students and their families. These laws aren’t for hiding behind to avoid difficult decisions.
Source: Rhonda Williams, Ed.D., LPC, NCC, https://www.schoolcounselor.org/Magazines/July-August-2010/HIPAA-or-FERPA-or-Not ;She can be reached at https://coe.uccs.edu/people/counseling-and-human-services/rhonda-williams