RE: HIPAA and Schools

[Moya Gray]

Ron -   Thanks very much for this decision.   Moya T. Davenport Gray, JD 1283 Honokahua Street Honolulu, Hawaii 96825 808-396-6731 808-381-3732 -----Original Message----- From: Ron Moore [mailto:[EMAIL PROTECTED] Sent: Monday, November 10, 2003 10:10 AM To: WEDI SNIP Security Workgroup List Subject: Re: HIPAA and Schools All, you may be interested in reviewing a Supreme Court decision that could have an impact on what constitutes educational records under HIPAA.   I've attached the decision for you convenience. I am not offering an opinion - rather just providing information.    The Supreme Court decision that addresses the issue of what constitutes an "education record" under FERPA.  Records that may be impacted include those maintained by the school nurse or other medical services personnel (e.g. speech and hearing therapist, school psychologist, trainers).    Within HIPAA - Section 164.501 Definitions of the Privacy Rule states: (2) Protected health information excludes individually identifiable health information in:     (i) Education records covered by the Family Educational Right and Privacy Act, as amended, 20 U.S.C. 1232g;   Of particular interest in the Supreme Court Ruling are the following statements:   From the bottom Page 4 (b) Petitioners and the United States contend that education records include only institutional records, .g. student grade point averages, standardized test scores, and records of disciplinary actions.   And continued on Page 5 :Maintain" suggest FERPA records will be kept in a file in a school's record room or on a secure database, ...   From Page 9 FERPA implies that educational records are institutional records kept by a single central custodian, such as a registrar, ...   From bottom of Page 10 As the Court acknowledges, ..., Congress expressly excluded from the coverage of FERPA records of ... instructional ... personnel ... which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute.    reference for statement on page 10 of the ruling - 20 U.S.C. Section 1232g(a)(4)(B) "the term 'education records' does not include - (i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute."   It is possible to conclude, based on the court decision, that most if not all records maintained by a school nurse or other health care services provider in his or her office are not educational records as defined in FERPA and are, therefore, subject to HIPAA.   Of course additional guidance from OCR, CMS and DOE would be helpful.   Ron Moore, D.B.A. State HIPAA Coordinator 1201 Main Street, Suite 850 Columbia, SC   29201 Phone:   803-737-0627 [EMAIL PROTECTED] www.hipaa.state.sc.us     --- The WEDI SNIP listserv to which you are subscribed is not moderated. The discussions on this listserv therefore represent the views of the individual participants, and do not necessarily represent the views of the WEDI Board of Directors nor WEDI SNIP. If you wish to receive an official opinion, post your question to the WEDI SNIP Issues Database at http://snip.wedi.org/tracking/. These listservs should not be used for commercial marketing purposes or discussion of specific vendor products and services. They also are not intended to be used as a forum for personal disagreements or unprofessional communication at any time. You are currently subscribed to wedi-security as: [EMAIL PROTECTED] To unsubscribe from this list, go to the Subscribe/Unsubscribe form at http://subscribe.wedi.org or send a blank email to [EMAIL PROTECTED] If you need to unsubscribe but your current email address is not the same as the address subscribed to the list, please use the Subscribe/Unsubscribe form at http://subscribe.wedi.org