Student medical data is in the crosshairs of universities that may want to access the records, and pupils and physicians who do not want them shared.
The controversy has spurred the Department of Education to call on colleges and universities to offer input about protecting students’ medical records, officials announced Tuesday.
Chief Privacy Officer Kathleen Styles wrote in a blog post that the agency has been questioned about whether medical records from on-campus services can be released to university attorneys in cases of litigation between the school and a student.
She didn’t name any specific instances or examples, but there has recently been a furor surrounding colleges over campus rape and sexual assault, often pitting students against university officials for not doing enough to protect them against alleged cases of assault.
A University of Oregon student who claimed she was raped by three basketball players last year and received therapy on campus had her medical records used against her when the college accessed the clinical documents and sent them to its attorney. According to a March article in NPR, university officials argued in court papers that the unidentified student’s health records could be accessed because they were property of the university.
But federal officials say they fear that students’ records could be used inappropriately in these types of situations.
“Institutions of higher education have a strong interest in ensuring that students have uncompromised access to the support they need, without fear that the information they share will be disclosed inappropriately,” Styles said in a statement provided by the Department of Education. “Protecting the privacy of student education records has never been more important to the department, which is why we are seeking the input from students and members of the higher education community on this important but technically complex issue.”
The Family Educational Rights and Privacy Act protects confidential student records but allows schools to share those records without student consent under certain exceptions — for example, if school officials determine they have a legitimate educational interest in the records.
But, Styles wrote, “This type of sharing is potentially allowable under the ‘school official’ exception to consent if the university attorneys have a ‘legitimate educational interest’ in the records.”
Medical records are considered education records and are only deemed “treatment records” if they are directly related to a student 18 or older attending college, made by a physician or other medical doctor, and used only in connection with the student’s treatment.
But schools commonly don’t share student medical records with school attorneys or courts without a court order or written consent.
The department is seeking input on whether the guidance would create unintended consequences and whether the guidance should be extended outside postsecondary schools to include K-12 schools and early childhood programs.
The call for guidance was hailed by Oregon’s Sen. Ron Wyden and Rep. Suzanne Bonamici, both Democrats.
“The Education Department today took an encouraging step toward protecting the privacy of student medical records on college campuses,” Wyden said in a joint statement with Bonamici. “Now, it’s critical that privacy experts and the higher education community weigh in on the draft guidance to make sure colleges and universities are held to the highest possible standard when it comes to protecting student privacy.”
Institutions of higher education are welcome to submit input until Oct. 2.
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