The Joint Guidance issued last month by the Department of Education and Department of Health and Human Services provides clarity about the “health or safety emergency” provisions in our confidentiality laws—FERPA and HIPAA.  Here is the answer to Question 22 in the Guidance:

FERPA provides that PII (personally identifiable information) from a student’s education records, including student health records, may be disclosed by educational agencies and institutions to appropriate parties in connection with a health or safety emergency, without the consent of the parent or eligible student, if knowledge of the information is necessary to protect the health or safety of the student or other individuals.  

The Guidance then offers this example:

For example, if an eligible student storms out of a teacher’s office stating that “I know where my parents keep their guns, and someone is going to pay” and the teacher believes that the student is on his way home to and may try to use the weapons, FERPA’s health or safety exception would permit the teacher to contact the parents, police, or others in a position to help, to warn them that the student is on the way home and threatened to use a weapon against others.

This exception applies when school officials reasonably conclude that there is an “articulable and significant threat” to the health or safety of the student or others.   That kind of threat could be a specific threat of an attack on someone, or “a situation in which a student gives sufficient, cumulative warning signs that lead an educational agency or institution to believe the student may harm himself or others at any moment.”

Notice that information in such an emergency can be provided to parents, the police or “others in a position to help.”  However, the Guidance does not provide a carte blanche for student records to be disclosed to law enforcement when there is no immediate health or safety emergency. Key Quote:

In situations where the law enforcement official is not a school official with a legitimate educational interest, the school may only disclose a student’s education records, including health records, to that official with the prior, written consent of the parent or eligible student, unless an exception applies.

The 25-page document is not compelling reading, but if you want to see what it says, check this out: 

2019 HIPPAA FERPA Joint Guidance

DAWG BONE: YOU HAVE TO HAVE AN “ARTICULABLE AND SIGNIFICANT THREAT” TO DISCLOSE CONFIDENTIAL INFORMATION IN AN EMERGENCY.

Back to the Dawg House for the weekend, folks.  See you on Monday.