Cassidy Tucker
A lawsuit filed against the University of Oregon by a victim of sexual assault has brought to light a little remarked upon exception to students' medical confidentiality rights, the Chronicle of Higher Education reported on March 2.
The University of Oregon asserted in its defense that it had a legal right to usestudents' college counseling center records against them.Princeton University is also currently facing a lawsuit in federal court from a student whoalleges in part that the University violated his medical confidentiality.
The alleged exception to the Family Educational Rights and Privacy Act could apply to students nationwide, including at the University, if upheld as a valid interpretation of the law.
The Chronicle of Higher Education wrote that the University of Oregon's defense appears to be correct.
The Department of Education has concluded universities can disclose educational records to courts without a court order or student consent because institutions should not have to subpoena their own records and should not be powerless to defend themselves, department guidelines say.
Counseling and Psychological Services is bound not only by FERPA but also by its own policies and the laws that govern licensure for its personnel, University spokesperson Martin Mbugua noted.
CPS guidelines say that the exceptions to requiring student consent for disclosure of medical records are rare and include certain circumstances, such as under court order, as required by law, in an emergency or life-threatening situations and in order to assure continuity of care for students with psychological andphysical conditions, among other situations.
The ethical policies of both the American Counseling Association and the American Psychological Association require that a therapist's records can only be disclosed to a court under a court order, so insofar as an educational institution respects those guidelines, a student's records are not at risk.
However, in the University of Oregon case, the records appear to have been disclosed legally without the student's and therapist's consent, since the ACA and APA guidelines are not binding and the University of Oregon maintained ultimate control of medical records at its counseling center.
Education records refers to any record about a student that is “personally identifiable,”Steve McDonald,general counsel at the Rhode Island School of Design and a well-known expert on FERPA, explained.
A financial aid record, an exam score or a medical treatment record are all considered educational records, he said.
“FERPA becomes questionable with records that are only vaguely educational records — for instance, mental health records,” Bill Koski, a litigator and law professor at Stanford University, said.
