Transcript FERPA and HIPAA for School Nurses and School Based Health Center Staff June 15, 2012 School Nurse and School-Based Health Center Orientation.

FERPA and HIPAA
for School Nurses and
School Based Health Center Staff
June 15, 2012
School Nurse and School-Based
Health Center Orientation
What Is FERPA?
• Family Educational Rights and Privacy Act
enacted in 1974
• Federal law that protects the privacy of
students
• Applies to educational agencies and
institutions that receive funds from any
program administered by the U.S Department
of Education
What Is HIPAA?
• Health Insurance Portability and
Accountability Act of 1996
• Created to protect the privacy and security of
individually identifiable health information
• Subject only to “covered entities”:
– Health care entities/providers that transmit health
information in electronic format
– Health plans, health care clearinghouses, and
health care providers
WHERE HIPAA & FERPA MEET:
Student Health Records
School Nurses
• Fall under FERPA if under
contract or direct
supervision of a school.
• Must receive parental
consent prior to sharing
any information to a third
party.
• May only share
information within a
school for “education
purposes.”
SBHC Staff
• Fall under HIPAA Privacy
Rule.
• Is allowed to share
information to other
health care providers,
without consent, in
certain instances.
• May treat minors without
parental consent in some
situations.
Resource
Joint Guidance on the Application of
Family Educational Rights and Privacy Act
(FERPA) and the Health Insurance Portability
and Accountability Act of 1996 (HIPAA)
To Student Health Records
November 2008
School Nurses and FERPA
• Most schools do not fall under HIPAA
because the only health records
maintained by the school are considered
“education records” of eligible students
under FERPA.
• HIPAA excludes the education records of
students, for that reason.
• Most schools are not “covered entities”
under HIPAA, because they do not
transmit health information electronically.
See 45 CFR §160.102.
SBHC and HIPAA
• SBHCs, although housed in a
school, are not under contract or
direct control of a school.
• Almost all SBHCs engage in covered
transactions under HIPAA- such as
billing a health plan electronically
for their services.
Sharing Information
School nurses
SBHC Staff
• Must receive parental consent
before sharing any part of the
student’s record.
• Must allow parents to see the
student’s record.
• Can share some information
with school staff, but only if
needed for educational
purposes.
• May share information with
school health providers for
“treatment purposes”, without
consent.
• Is required to keep some
information confidential, if
requested to do so by the
minor.
• Many have consents to allow
bi-directional information
sharing between SBHC, school
nurse and primary care
provider
Gray Areas
• West Virginia law on minor consent:
– Minors do not need parental consent for:
• Alcohol/substance abuse treatment;
• STDs/Family Planning
• Other treatments, if determined to be a “mature minor” by
the medical provider.
– If Primary Care provider shares information with
School Nurse, and the School Nurse documents this
information in the student’s record, the parents have
the right to view the record, under FERPA.
– FERPA regulates written information, not oral
information. Also allows for school health provider to
keep private “notes”, that are not viewable.
Additional Resources
FERPA
• U.S. Department of Education
http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
• September 2008 U.S. Department of Education –FERPA memo
• February 2004 Montgomery Alabama memo – FERPA/HIPAA
HIPAA
• U.S. Department of Health and Human
Services – Health Information Privacy
http://www.hhs.gov/ocr/privacy/
Example 1
Tim is 8 years old and has been diagnosed with
Diabetes. Tim’s parents share this information
with the school nurse. The nurse believes Tim’s
teacher should know, in case Tim begins to
exhibit problems in class.
May the nurse inform Tim’s teacher?
What procedures must he/she follow?
Solution 1
• Yes. Under FERPA, the School Nurse may
share information with another person within
the school, for “educational purposes.”
• Because the teacher is not considered a “third
party”, the school nurse does not need
parental consent prior to sharing the
information.
Example 2
A SBHC doctor would like to let the school nurse
know that Mary is taking antibiotics that could
cause her to become very ill, if she doesn’t eat
properly throughout the day. Mary has
mentioned to the doctor that she is dieting
because of prom.
May the doctor inform the school nurse?
Solution 2
Yes. Under HIPAA, the doctor may inform the
school nurse for treatment purposes, without
the consent of the patient or the patient’s
guardians.
CAVEAT: The antibiotic is for treatment of a
STD, and Mary doesn’t want her parents to
know.
Solution 2 cont.
If the school nurse makes documentation in Mary’s
school record, her parents will have the right to
view such record, and therefore, Mary’s health
rights have been compromised.
• The school nurse may make a “personal note”,
about the situation, which is allowed and may not
be viewed by parents, under FERPA.
• The school and SBHC may jointly draft a release,
allowing for the sharing of such information, with
the understanding that such information will remain
private as allowed by West Virginia law.
HIPAA & FERPA
• To balance the rights of students have their health
information kept private, and the need for health
providers to work within the law, school nurses and
school based health centers must communicate with
one another and keep one another informed of the
applicable policy.
• If you encounter a “gray” subject area, please
request the assistance of your legal counsel.
• Special recognition to Jessica Wherle, past
legal counsel for the WV Primary Care
Association and Paula Fields, rural health
coordinator for Marshall University School
Health Technical Assistance Center.