For the first time in over a decade, the U.S. Department of Education (DoE) and the Office for Civil Rights at the U.S. Department of Health and Human Services (OCR) have released updated joint guidance addressing the application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to records maintained on students.
The original guidance was first issued in November 2008; it addresses how FERPA and HIPAA apply to education and health records maintained about students. The revised guidance adds FAQs addressing when a student’s health information can be shared without the written consent of the parent or eligible student under FERPA, or without written authorization under the HIPAA Privacy Rule. These new clarifications and examples address:
* When can PHI or PII be shared with the parent of an adult student?
* What options do family members of an adult student have under HIPAA if they are concerned about the student’s mental health and the student does not agree to disclosures of their PHI?
* Does HIPAA allow a covered health care provider to disclose PHI about a minor with a mental health condition or substance use disorder to the minor’s parents?
* When can PHI or PII be shared about a student who presents a danger to self or others?
* Under FERPA, can an educational agency or institution disclose, without prior written consent, PII from a student’s education records, including health records, to the educational agency’s or institution’s law enforcement officials?
* Does FERPA permit an educational agency or institution to disclose, without prior written consent, PII from a student’s education records to the National Instant Criminal Background Check System (NICS)?