School-based health programs and providers bring a range of needed health care services to a school campus. These programs also provide an exciting opportunity to increase health care access for youth and improve care coordination and collaboration among providers and schools.
When developing school-based health programs, there are several legal considerations that the health provider(s) and education agencies should address early on. One of the most important is determining which confidentiality laws control access to and disclosure of the school-based health programs’ health care information. While there may be multiple laws to consider, the first question to address is whether the program’s information is subject to the federal Family Educational Rights and Privacy Act (FERPA) or the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).
Whether HIPAA or FERPA applies and how those laws interact with state confidentiality law will impact school-based health service operations in large and small ways:
- from framing how school staff and health providers collaborate and share information;
- to shaping policies about how to deal with suicide threats and other emergencies;
- to determining the content of required notices and consent forms and other administrative issues.
- FERPA and HIPAA can never apply to the same records at the same time.
- FERPA and California medical confidentiality law can apply to the same records at the same time.
- HIPAA and California medical confidentiality law can apply to the same records at the same time.
- HIPAA or FERPA may apply to control the release of the health records created when health services are provided on a school campus.
FERPA or HIPAA?
- A school health program’s records are subject to FERPA if the program is funded, administered and operated by or on behalf of a school or educational institution.
- A school health program’s records are subject to HIPAA if the program is funded, administered and operated by or on behalf of a public or private health, social services, or other non-educational agency or individual.
John is in 3rd grade at Franklin Elementary. He has been distracted and fidgeting in class recently. His teacher refers John and his family to the mental health counselor from a local nonprofit who comes to campus once a week. The counselor discovers that John’s aunt recently passed away and that John is scared about losing other family members. He hasn’t been sleeping well and is feeling anxious. John’s teacher reaches out to the counselor to ask if there is anything she can do to help John. What may the counselor tell John’s teacher? Would the answer change if John had been referred to a school nurse instead?