U.S. Department of Education Releases New Guidance Regarding FERPA and Student Health Records

The United States Department of Education (DOE) recently released two new guidance documents focused on student health records to remind schools of their continued obligations to protect students’ rights under the Family Educational Rights and Privacy Act (FERPA).

FERPA, administered by the DOE’s Student Privacy Policy Office (SPPO) protects the privacy of “education records” and applies to schools that receive funding under any program administered by the DOE. Education records are broadly defined as records directly related to a student and maintained by an educational agency or institution or by a third party acting for an agency or institution. A student’s health records maintained by a school nurse or health clinic may qualify as education records subject to FERPA, under certain circumstances, rather than as protected health information that is subject to the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA).

The first DOE guidance document provides school officials an overview of FERPA, with a particular focus on student health records maintained by agencies and institutions and third parties acting on their behalf. The guidance document defines records under FERPA and provides FAQs regarding educational records under FERPA, with a particular emphasis on student health records.

The second DOE guidance document, is a one-page “know your rights” guide. This document is directed towards parents and students. It provides an FAQ with questions and answers tailored to student health record and their disclosure.

Finally, the DOE recently updated its guidance regarding “eligible students,” which provides general information on an eligible student’s rights under FERPA. When a student turns 18 years old or attends an institution of postsecondary education at any age, the student becomes an “eligible student,” and all privacy rights and protection under FERPA transfer from the parent to the student. The eligible student guidance reviews an eligible student’s right to access, inspect and review their education records, the right to seek amendment of their records, the right to consent to disclosure of PII from their records, and the right to file a complaint with SPPO regarding an alleged failure by an educational agency or institution to comply with FERPA.

The FERPA guidance documents provide valuable information regarding what constitutes a student health record. The guidance documents are good reminders for school officials of their obligations under FERPA regarding obtaining written consent from parents or eligible students prior to disclosure of personally identifiable information from a student’s education records, which may contain student health information. Ultimately, the DOE recommends that when making decisions involving student health information, school officials should give great weight to each student’s reasonable expectation that their health information will not generally be disclosed, or will be disclosed only in the rarest of circumstances and only to further important purposes, such as ensuring campus or school safety.

For questions about FERPA or student privacy, please contact any Franczek attorney.