For example, under amendments to the Higher Education Act made in 2008, ED is New regulations issued by the Department of Education (DOE) in December, 2008, created three new provisions concerning this exception. institution has determined to have legitimate educational interests” – meaning they need this information to adequately perform their job functions and duties. FERPA and the Coronavirus Disease 2019 (COVID-19) The purpose of this guidance is to answer questions that school officials may have had concerning the disclosure of personally identifiable information from students’ education records to outside entities when addressing the Coronavirus Disease 2019 (COVID-19). FERPA’s health or safety emergency provision permits such disclosures when the disclosure is necessary to protect the health or safety of the student or other individuals. are absent. have a rational basis for making the determination. information, such as their names. Cincinnati, Ohio 45202 students’ education records. Relevant information can be released to law enforcement, public health, and medical officials. As district. Given that HIPAA concerns the privacy of health information, many people logically assume students’ health records maintained by a campus health clinic or a school’s athletics department would be covered by HIPAA. fax: 216.520.0044. See 34 CFR §§ 99.31(a)(10) and 99.36. Disclosure of PII in student education records may be made to “appropriate parties,” which include health agencies. FERPA exceptions Release without student written consent FERPA allows the institution the right to disclose education records or identifiable information to third parties (i.e., anyone not a “school official”) without the student's consent under the following circumstances: records without the prior written consent of a parent or “eligible student” However, HIPAA has some specific exceptions for health information, one of which is covered by FERPA. discretion when determining if the exception applies. exception that may apply during the outbreak is the “health or safety significant threat that formed the basis for the disclosure and the parties to Especially relevant to potential violence at school is FERPA’s health or safety emergency exception which permits the disclosure of students’ education records, or the PII [personally identifiable information] contained therein, to appropriate parties if knowledge of such information is necessary to protect the health or safety of students or other persons in connection with an emergency. § 1232g (b) (1) (I); 34 CFR. refuses to provide written consent for the disclosure, then FERPA would prohibit the school. A Service of the Privacy Technical Assistance Center and the Student Privacy Policy Office. COVID-19 outbreak, school districts must not forget the Federal Educational In the case of COVID 19, the most applicable exception to consent is FERPA’s health or safety emergency exception. a reminder, if a school district releases information pursuant to the “health The U.S. Department of Education (ED) is working with Census to share updates on the 2020 Census. or safety emergency” exception, it must remember to maintain a record of each This exception During the For additional U.S. … The U.S. Department of Education confirmed in FERPA and Coronavirus FAQs this spring that the FERPA health or safety emergency exception does allow education agencies or institutions to disclose, without consent in certain circumstances, including, but not limited to: FERPA’s health or safety emergency provision permits such disclosures when the disclosure is necessary to protect the health or safety of the student or other individuals. from disclosing personally identifiable information from students’ education In other scenarios, school officials may believe that a health or safety emergency exists and more specific information on students should be disclosed to appropriate parties. ED has narrowly construed the emergency exception so that it must be limited to the time period of the emergency; disclosures made for general emergency preparedness activities are not covered under the … Be aware, however, that this exception to the consent requirements in FERPA is limited to the period of the emergency and does not allow for unlimited release of personally identifiable information (“PII”) from a student’s education record. The U.S. Department School districts have School districts must also record the articulable and 3. When releasing such information, school Cleveland, Ohio 44131-6808 fax: 216.520.0044, 250 East 5th St., Suite 1565 Empowering Ohio’s Boards of Education with effective legal counsel to make quality choices for children, Visit learn.pepple-waggoner.com for Seminars. articulable and significant threat exists to the health or safety of a student Rights and Privacy Act (“FERPA”), a federal law which protects the privacy of Does FERPA permit schools and districts to disclose education records, without consent, to outside law-enforcement officials who serve on a school’s threat assessment team? a final note, school districts may disclose that student(s) are absent because disclosure. In sum, they must . other factors, allow someone in the community to identify the student(s) who 5005 Rockside Rd. Rather, these disclosures must be related to an actual, impending, or imminent emergency, such as a natural disaster, a terrorist attack, a campus shooting, or the outbreak of an epidemic disease. © Pepple & Waggoner All Rights Reserved 2014, FERPA and the “Health or Safety Emergency” Exception, Pepple & Waggoner Attorneys to Speak at Virtual OSBA Capital Conference, Natalie Rothenbuecher Joins Pepple & Waggoner, Buckeye Association of School Administrators, Ohio Association of School Business Officials. Please note that media is not an of COVID-19 but must ensure they do not disclose any personally identifiable (a) An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties, including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals. Melinda Kaufmann. This is not actually defined in the statute. And the other FERPA exception highlighted by the commission has to do with health or safety emergencies. districts are responsible for determining whether the exception applies by Family Educational Rights and Privacy Act (FERPA), Protection of Pupil Rights Amendment (PPRA), Request PTAC Training or Technical Assistance, FERPA and the Coronavirus Disease 2019 (COVID-19), Colleges and the 2020 Census - Coronavirus Update. So, what is a health or safety emergency? Pepple & Waggoner helps school boards identify legal concerns early, and resolve them as efficiently and inexpensively as possible. FERPA’s health or safety emergency provision permits such disclosures, without the consent of the parent or eligible student, if necessary to protect the health or safety of the student or other individuals. phone: 216.520.0088 without consent, personally identifiable information from that student’s This exception to FERPA’s general consent requirement is limited to the period of the emergency and generally does not allow for a blanket release of PII from a student’s education records. General counsel at NC State has determined that the case manager has a “need to know basis” about any educational records relating to … FERPA permits disclosure without written consent in specified emergency situations if the information is necessary to protect the health and safety of the student or other individuals. One such An appropriate party is defined under FERPA as a party whose knowledge of such information is necessary to protect the health or safety of students or other persons. HIPAA applies when a school’s health services are funded, administered and operated by or on behalf of public or private health, social services, or other non-educational agencies or individuals. protect the health or safety of a student or other individuals. the health or safety of the eligible student or other persons. Health and Safety Exceptions Under FERPA FERPA-Health or Safety Emergency In an emergency, FERPApermits school officials to disclose without student consent education records, including personally identifiable information from those records, to protect the health or … allows school districts to disclose, without consent, personally identifiable 20 U.S.C. . As . (over 18), unless an exception applies. education record to appropriate officials at the public health department. School SAFETY EMERGENCY Generally, FERPA prohibits NC State from disclosing student education records (or information from student records) to anyone other than the student to whom the records pertain, unless NC State has the student’s consent or an exception applies. in attendance as a result of COVID-19, the school district may disclose, an exception applies which allows disclosure without the student’s consent.9 FERPA contains several exceptions to the general rule of non-consensual disclosure of education records. 20 U.S.C. Health Or Safety Exception FERPA has always had an exception for non-consensual disclosure of education records in health or safety emergencies. Part 99. are necessary to protect the health or safety of the student or other persons.20 In the wake of the shootings at Virginia Tech, there have been several attempts to clarify FERPA’s health or safety exception. "FERPA's health or safety emergency provision permits such disclosures when the disclosure is necessary to protect the health or safety of the student or other individuals," the FAQ says. Generally, FERPA prohibits school districts from disclosing personally identifiable information from students’ education records without the prior written consent of a parent or “eligible student” (over 18), unless an exception applies. Department of Education guidance regarding FERPA & COVID-19, see https://www.ed.gov/coronavirus. FERPA 1. Generally, FERPA prohibits school districts According to FERPA’s health or safety emergency exception, if a school determines that there is an articulable and significant threat to the health or safety of a student or other individuals and that someone needs PII from education records to protect the student’s or other individuals’ health or safety, the school may disclose that information to the people who need to know it without first … The exception most used to conduct normal university functions is the “legitimate educational interest exception.” Under this exception, student educational records can be disclosed to “school officials . One such exception that may apply during the outbreak is the “ health or safety emergency ”exception. When is it permissible for schools or districts to disclose student education records under FERPA’s health or safety emergency exception? Suite 260 The purpose of this guidance is to answer questions that school officials may have had concerning the disclosure of personally identifiable information from students’ education records to outside entities when addressing the Coronavirus Disease 2019 (COVID-19). Once again noting that the "health and safety emergency" exception generally does not allow a blanket release of personally identifiable, non-directory information from education records, we concluded that FERPA would allow school personnel to comply with this law health or safety of a student or other individuals. –Unlike HIPAA, FERPA does not contain a public health exception, and education records, including immunization information, are expressly excluded from HIPAA. Institutions have broad discretion to use reasonable judgment on disclosures In some situations, school administrators may determine that it is necessary to disclose personally identifiable information (PII) from a student’s education records to appropriate parties in order to address a health or safety emergency. HEALTH AND SAFETY EXEMPTION FERPA permits non-consensual disclosure of education records, or personally identifiable, non-directory information from education records, in connection with a health or safety emergency under § 99.31(a)(10) and § 99.36 of the FERPA regulations. whom the . While FERPA requires that a school district notify parents when their child’s education records are released pursuant to a subpoena, the Act is silent on whether a student’s parent or guardian must be notified when the District makes a disclosure using the health and safety exception. emergency”exception. Health and Safety Exception to FERPA's Confidentiality Requirements. The emergency must be significant and articulable, like an impending natural disaster, a terrorist attack, a campus threat, or the outbreak of an epidemic disease. FERPA does, however, authorize school officials to disclose information without consent in emergency situations where the health and/or safety of students is at risk. Thus, for example, if a school district decides that an FERPA also expressly provides that, for purposes of the health and safety emergency exception, the “appropriate parties” to whom disclosure may be made include teachers and officials at other institutions of Education will not substitute its own judgment for that of the school considering the “totality of the circumstances” pertaining to a threat to the connection with an emergency, if knowledge of that information is necessary to This proactive focus is why so many of Ohio’s boards of education have relied on us since 1989. whom the disclosure was made. –FERPA has an exception that allows for disclosure of covered records in connection with health and safety emergencies if the disclosure is necessary to protect the health and safety of If the exceptions to FERPA’s general consent requirement do not apply and the eligible student. FERPA would generally permit school officials to disclose immunization and other education records to public health authorities under the health or safety emergency provision of FERPA if it is in connection with a health or safety emergency and the knowledge of the information disclosed was necessary to protect the health and safety of the students or other individuals. FERPA and HIPAA (10) Group Health Plans (3) Health Information Technology (41) ... is necessary to prevent or lessen a serious and imminent threat to the health or safety of the patient or others and (2) is to a person(s) reasonably able to prevent or lessen the threat. phone: 216.520.0088 2. trained medical personnel. “Appropriate parties” include law enforcement, public health officials, and districts must do so in a manner that will not, alone or in combination with A primary focus of the FAQ is to provide additional information regarding the health and safety exception to FERPA’s general rule that student (or parent) consent is required before disclosing personally identifiable information (PII) to third parties. §§ 99.31 (a) (10) and 99.36. appropriate party. 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