In limited circumstances, yes. The information may be disclosed pursuant to a FERPA compliant written authorization. If there is no authorization in place, information can only be disclosed in a few limited circumstances. For example, the school could provide the health provider access to directory information about a specific student absent parent consent. What that would include will depend on how directory information has been defined by that school district in its annual notice to parents and whether parents have opted out. In addition, the school also may disclose information to the provider that is not contained in the education record, such as information from oral communications or personal observation that have not been recorded.129 In an emergency, the information in the education record may be disclosed to appropriate persons pursuant to the FERPA emergency exception described in School Nurses Frequently Asked Questions: May a school nurse disclose information from the education record in an emergency?.
HIPAA allows a health care provider to disclose otherwise protected health information in order to avert a serious threat to health or safety. Specifically, HIPAA says that a provider may disclose information, consistent with applicable law and ethical principles, if the provider in good faith believes the disclosure:
- is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
- is to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.
There is a presumption that a provider acted in good faith in making such a disclosure if the provider’s belief is based on actual knowledge or in reliance on a credible representation by a person with apparent knowledge or authority.130 Therapists are permitted to disclose psychotherapy notes without authorization under emergency circumstances.131
It is important also to review which California law may apply to the records in question and under what circumstances disclosure absent written authorization is allowed in an emergency under the applicable law.
Under California law, a therapist may disclose medical information as necessary to prevent or lessen a threat to the health or safety of a reasonably foreseeable victim or victims. Exactly when and to whom such information can be disclosed will depend on which California law the therapist is providing services under. For example, if the therapist is subject to the Civil Code, disclosure of information may be to any person reasonably able to prevent or lessen the threat, including the target of the threat.132 Therapists should consult their own legal counsel for more information and guidance on which California confidentiality law applies to their records. Providers also should consult their ethical and licensing rules for applicable guidance.
In most cases, yes. The information may be disclosed pursuant to a HIPAA and state law compliant written authorization. Alternatively, HIPAA and California law also permit health care providers to disclose protected health information to other health care providers for “treatment” purposes. HIPAA defines “treatment” broadly in this context to include coordination of management of health care, consultation and referral as well as direct treatment.133 Providers also are allowed to disclose information to other providers absent authorization in a few other circumstances, such as in certain medical emergencies. It is important to note that once disclosed to the school nurse, if the school nurse places the information in the pupil file, FERPA likely will apply when determining access to the information in the file, not HIPAA.134
The provider can share information pursuant to a HIPAA/CA-compliant signed authorization. Otherwise, there is no exception under HIPAA that would allow a provider to share protected health information with a teacher for this purpose.