As COVID-19 continues to spread in the US, teachers, students, and their respective communities face tough privacy issues. Typically, the Health Insurance Portability and Accountability Act (HIPAA) delineates patients’ privacy rights regarding the disclosure of protected health information. However, this is not the case for student health information. The Family Educational Rights and Privacy Act (FERPA), enacted by the US Department of Education, provides guidance to schools handling privacy issues related to COVID-19. The difference between the two health information privacy acts is that FERPA specifically protects health information contained in school records. Similar to HIPAA, FERPA requires consent to disclose protected health information. However, the pandemic has created a “safety emergency exception” to the consent requirement.
As children across the US slowly return to their classrooms, there are concerns about how and when information about COVID-19 cases will be released to teachers, school staff, students, and their families. USA Today reported inconsistencies in how school districts and health departments coordinate and release information. One reason for the inconsistencies is the lack of clarity at the state level regarding how to approach ongoing risk of COVID-19 in schools. The confusion because of the discrepancy in the application of FERPA compared to HIPAA. Specifically, HIPAA prevents the disclosure of health information, yet while FERPA allows the disclosure of such health information as long as it as long as it does not include information that could identify the student.
The specific language in FERPA regarding student privacy prohibits the disclosure of the student’s name, ID, or any other information that could indirectly or directly be traced to the affected student. Moreover, the language in FERPA mandates that the disclosure of health information is examined on a case-by-case basis. This provision ensures that only necessary information is disclosed in consideration of other students’ health during the Pandemic. Additionally, there is a recordkeeping section that requires schools to maintain a record of emergency disclosures that the affected student and parents can examine at any time.
So, what are the legal and public health implications for unconsented disclosure during COVID-19? Containing the spread of the virus, for the time being, has to be the number one priority. There is a real threat to public health and safety when students and parents are unaware of COVID-19 cases that occur within their respective schools. It is understandable that tension may arise when disclosing student health information without clear guidance from state and federal leadership on how to protect those privacy interests. The rationale for withholding such important information during a global pandemic makes no sense. The solution to widespread confusion and inconsistencies is transparency across the board in terms of tracking the spread of the virus. Such transparency in school systems ensures that school districts across the US are doing their jobs and taking the proper precautions to protect the health of our nation’s children.
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