Student privacy laws still apply if coronavirus just closed your school

guest · Mar 14, 2020

Student privacy laws still apply if coronavirus just closed your school
FERPA is probably not in anyone's top 100 concerns right now, but it still exists
March 12, 2020
https://arstechnica.com/tech-policy...falls-if-your-school-is-suddenly-online-only/

Hundreds of colleges and universities are suddenly shutting their doors and making a rapid switch to distance learning in an effort to slow the spread of novel coronavirus disease. Likewise, hundreds of K-12 districts nationwide have either already followed suit or are likely to in the coming days.

While the United States doesn't have all that much in the way of privacy legislation, we do, in fact, have a law protecting some student educational data. It's called the Family Educational Rights and Privacy Act, or FERPA.
FERPA applies to both written and digital student records.

The act prohibits "improper disclosure" to third parties of personally identifiable information (PII) derived from student records. Schools are not prohibited from allowing vendors access to information for the purpose of providing services—you can use third-party digital tools for administrative and educational purposes without being in violation of the law.
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Software platforms allowing videoconferencing, recording, and screen sharing have all seen a massive spike in use in recent weeks. Microsoft, Google, Slack, and Zoom [...] Not all of those tools, many of which are designed for enterprise use, are necessarily going to be compliant with educational regulations.
Google, in particular, has been in hot water before.
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guest · Mar 14, 2020

Education in a Time of Corona: Student Privacy Law and the Coronavirus
March 11, 2020
https://www.jdsupra.com/legalnews/education-in-a-time-of-corona-student-17078/

Schools provide health services. Nursing staff, counseling, prescription management and vaccination services are offered on campuses. These services give schools access to sensitive personal health information (PHI). PHI is protected by law. That would include a coronavirus diagnosis.

The issue is knotty. First, it involves balancing two rights: privacy and public health. Second, it involves the interaction of two complex laws. FERPA, the Family Educational Rights and Privacy Act, applies to most school health records. HIPAA, the Health Information Portability and Accountability Act, applies to some school health records.
FERPA was enacted in 1974. HIPAA’s privacy regulations were issued in 2000.

Both FERPA and HIPAA generally protect health information from disclosure. The consent of the student or their guardian is required. So what is a school supposed to do? The good news is that both FERPA and HIPAA have exemptions for public health emergencies. The guidance on public health emergencies is complex. But the coronavirus would certainly qualify.
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guest · Nov 1, 2020

Which Privacy Protections Apply? HIPAA, FERPA and COVID-19
October 20, 2020
https://hipaahealthlaw.foxrothschil...y-protections-apply-hipaa-ferpa-and-covid-19/

A recent conversation with a colleague in California prompted me to write this. He said that as part of its back-to-school plan, his children’s elementary school district “highly encouraged” that all students be tested for COVID-19 before returning to class. The district provided families with an in-home saliva test and asked parents to collect their child’s saliva, place the vial in a plastic bag along with some forms containing identifying information, and drop them off at the district offices before the start of school.

I said that HIPAA most likely does not apply to this health information, but FERPA might [...] Nevertheless, the conversation reminded me that efforts to keep students healthy and safe must account for privacy.
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When Ebola was in the public health spotlight, I posted here about a New Jersey elementary school that posted an announcement about two new students arriving from Rwanda.
The students were not identified by name, [...] but the report raised concerns with how schools protect student privacy as well as the health of other students and staff.

As schools around the country grapple with whether and how to get students back into the classroom, it is easy to overlook data privacy requirements, especially when the privacy law that applies to most individually identifiable health information (HIPAA) and the privacy law that applies to most student records (FERPA) differ.
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The U.S. Department of Education published FAQs in March 2020 on FERPA and COVID-19 [...]
Interestingly, FAQ 7 states that schools can disclose information about a COVID-19 positive teacher or staff member to parents and students, as FERPA only protects information contained in student records, but points out that state privacy laws may apply.
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However, it’s worth noting that if the school has a self-funded health plan and receives the information in that capacity, HIPAA would prevent such a disclosure without the individual’s authorization.
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