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Add HIPAA and FERPA to your return-to-school checklist

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Posted by Kathyrne Bradesca
Aug 6, 2020 7:56:23 AM

As Covid-19 concerns spread like wildfire throughout the country, school administrators are experiencing many sleepless nights while planning for the return to school in coming weeks. Even the vocabulary of summer has changed for you. Instead of budgeting, scheduling, and hiring, you are now focused on remote learning, hybrid scheduling, and social distancing.

You definitely have your hands full dealing with the typical back-to-school checklist, and now you’re responsible for keeping an entire district safe in a pandemic. Add to that the legality of running the district safely, of making sure


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HIPPA and FERPA laws are handled correctly, and the constant communication flow from worried parents, and the burden can get overwhelming. 

Luckily, there are many safeguards already in place in your district to protect your students, and these will be key for you in handling the pandemic. But there are also exceptions this year to protect the community from the fast spread of the virus. This article will hep keep you up to date on what you need to do to keep your schools, yourselves, and your entire community safe – and on the right side of the law. 

1. FERPA and HIPAA basics

Not only do you have to keep your school district safe from Covid-19, great care must be taken to keep your district safe from missteps concerning longstanding federal regulations. The Family Educational Rights and Privacy Act (FERPA) covers all institutions that obtain money from the US Department of Education. FERPA states that you cannot reveal any personal information about a student without written consent. This covers a student’s personal identity information and any part of the student record. 

In terms of a pandemic, FERPA’s scope includes any health information, immunization records, or other information held by the school nurse. Furthermore, the Health Insurance Portability and Accountability Act (HIPAA) protects health information, which cannot be disclosed except by written consent of the interested party. HIPAA pertains to the adults in your building. Of course, there are exceptions to both of these rules, especially when it comes to keeping your community safe.

2. Screen at home, not at school

The news is blazing with stories of workplace wellness checks, and your gut reaction might be to do safety checks on your students and staff each day at the doors of your school. The Center for Disease Control and Protection (CDC) actually advises against in-school screenings, but rather recommends each family monitor the health of their students at home. 

There are several reasons for this. Because many symptoms overlap with other illnesses, testing symptoms can not guarantee a student has Covid-19, and students could be sent home for an extended time and not even have the virus. Secondly, students might have the virus but not be exhibiting symptoms yet, and 16 percent of children with Covid-19 show no symptoms at all.  

Instead, have your district families report health at home. The CDC advises that families should report on two categories: symptoms and close contact. Parents should look for a temperature of 100.4 degrees Fahrenheit, a new cough, sore throat, diarrhea, or severe headache. Close contact is defined as being within 6 feet of someone who has been diagnosed with Covid-19 for at least 15 minutes. Families also should report if they have traveled to or live in high-transmission areas. Many school districts are sending these checklists home to aid families in screenings. This checklist is a good form to add to your communication hub

If you DO choose to screen, consider FERPA and feasibility. You need to be able to keep students´ information safe, and also have the equipment, staff and ability to socially distance all the students and screeners. Consider the amount of community spread at the time, and balance that with the stigma of being sent home and the lost learning that will follow. 

If a student reports symptoms from home, you can make sure they contact their health care provider. Luckily, you do not need to walk this road alone. Your local county health department will advise each district and help with any Covid-19 cases they encounter. One interesting note: if you have sent a student home for Covid-19, students do NOT need a negative test result or a doctor’s note to return to school. 

3. FERPA says tell the truth

You have always been taught about the importance of student privacy, but in the middle of a pandemic, public health takes precedence. FERPA contains a health and safety emergency exception that allows you to disclose information for the good of the community. So can you share that a ninth grader has tested positive for Covid-19?  

As long as you shield the student’s name and any blatantly identifiable pieces of information about him or her, you can share test results. For instance, if the student is the only freshman on the junior varsity volleyball team, you cannot share that detail because the public could easily figure out who that is. In responding to a Covid-19 outbreak, an agency can voluntarily request information from a school to assist in tracking and containing the outbreak. FERPA says you may disclose numbers of cases within your district without identifiable information for the students. 

4. Take records home despite FERPA

Undeniably, your school year will look unlike any other. Faced with remote and hybrid learning models, you need to make sure you protect all students whether they are at home or in the school building. The US Department of Education has made provisions for the safety and privacy of children in a remote learning setting. There are four important things to remember.

  • First, teachers are allowed to take student records home to assist them in helping their students. The more they know about students, the more they can help, especially in the awkward remote learning environment. 
  • Secondly, FERPA's exceptions allow for the information students need to join computer applications to be shared. Make sure to consult your attorneys, and choose programs with strong encryption and safeguards for privacy. There is no restriction on what apps can be used; the choice is up to the individual districts. 
  • Next, in cases where students are learning at home without complete privacy from other family members, it is okay if non-students watch online classes, as long as personal information is not shared. Incidentally, the classes and material can be recorded for other students to watch. 
  • Lastly, parents still need to have access to their childrens’ records under FERPA, even if the school is closed. You may need to get creative with this, having parents sign electronically and/or making them a copy of the records to send through the mail. 

5. Shield teachers AND community members with HIPAA

The adults in your building are normally protected by HIPAA. You cannot ask them to disclose health conditions; this kind of information is on a need-to-know basis. For example, a manager does not need to know why an employee is out, but just that they will be out for a few weeks. In the case of coronavirus, employers can tell local health officials if someone has tested positive, in order for them to do contact tracing and try to stop the spread. There may also be an obligation to tell colleagues, so they know they may have been exposed. Again, consult your attorneys in this matter. HIPAA generally permits sharing this information, especially in cases of health and safety of all.

Put out the fire

In this unprecedented time, it is your job to keep your schools and community safe, as well as to make sure you are working in accordance with laws. As you make your plans for the coming school year, keep in mind that the CDC recommends against school screenings, and opts for at-home screenings to curb the virus in your district. Understand that HIPAA and FERPA both grant exceptions to their policies in a case like the COVID-19 pandemic, though you still must avoid giving identifying information if you are reporting cases. Consulting your district lawyers and utilizing the help of local health officials will also keep you up to date on important safety issues. 

By keeping the above safeguards in mind, your district will be able to throw some water on the flames, keep the constituents in your district safe, and stay in compliance with the law. 

 

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Posted by Kathyrne Bradesca

Kathyrne Bradesca is a freelance writer from Cleveland, Ohio, and has been a junior high and high school teacher for the past 24 years. She is a member of the National Writing Project who understands the power of words. When she is not writing or teaching others to write, she enjoys hiking with her 3 teenagers, gardening and reading.

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