Health and Health Care in Schools
Vol 4, No 4 - June 2003


 

House Passes Bill to Bar Schools from Requiring Medication of Students

The United States House of Representatives voted May 21 to prohibit school personnel from requiring a child to obtain a prescription for a controlled substance as a condition of attending school. State education agencies would be required to develop policies and procedures to prevent schools from making such requirements.

The bill passed by the House, H.R. 1170, the Child Medication Safety Act of 2003, would permit teachers and other school personnel to consult with parents or guardians about a student’s academic performance or behavior in the school, or the need for evaluation for special education, but would protect parents from being "coerced" by school personnel into medicating their children.

In a report on the legislation, the House Committee on Education noted that it was concerned especially about the appropriate role of prescription medication in treating children diagnosed with attention deficit hyperactivity disorder (ADHD) and attention deficit disorder (ADD). "The Committee has been made aware of situations where parents have voiced concern that local educational agency officials have required them to place children on psychotropic medication in order to attend school or receive services."

"School officials should not presume to know what medication a child needs, or if the child even needs medication," the committee said in its report. "Only medical personnel have the ability to determine if a prescription for a psychotropic drug is appropriate for a child."

The committee said it recognizes the validity of research showing that psychotropic drugs such as Ritalin "can be beneficial to some individuals when properly diagnosed and the medication is properly administered and monitored," but said it is concerned that "too often the easy answer of medication is utilized as a response for too many children." It also noted that treatment is improved by educational as well as medical interventions.

The committee report stressed that the new legislation is not intended "to stifle appropriate conversation between school officials and parents about the behavior and academic achievement of the child."

"School personnel spend many hours a day with a child and are able to observe a variety of situations and behaviors. When parents seek to discuss their child with a teacher or school official, school personnel should continue to be free to discuss their observations with the parent to ensure that the parent has sufficient information to make appropriate decisions regarding their child’s medical needs. However, the Committee cautions that such discussions should be mutual consulting conversations that describe and identify areas of concern, but which are not followed by recommendations of school personnel that would be construed as a medical diagnosis or a condition of attending school."

The House-passed bill calls for a study by the General Accounting Office (GAO), the investigative arm of Congress, of:

  • variations among states in definitions of psychotropic medication as used in education,
  • prescription rates of medications used in public schools to treat children diagnosed with ADHD or ADD "and other disorders or illnesses," and
  • which medications used to treat children in public schools are listed under the Controlled Substances Act.

The Controlled Substances Act (21 U.S.C. 812(c)) lists drugs in Schedules I, II, III, IV, or V, depending on the extent to which they have a medical use, are likely to be abused, and are likely to become addictive. As an example, Ritalin (methylphenidate, a central nervous system stimulant) is a Schedule II drug.

The House-passed bill, H.R. 1170, must be approved by the Senate and signed by the President before it can become law. The House Education Committee’s report on the bill is H.Rept. 108-121. Texts of both the bill and the committee report are available on website http://thomas.loc.gov.

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Journal Summarizes What’s Known About Pediatric Food Allergy

In a supplement to its June 2003 issue, the journal Pediatrics summarizes the current state of knowledge about food anaphylaxis in children, including clinical manifestations of allergies and emergency treatment of anaphylaxis. Noting that food allergies seem to be increasing in prevalence, the journal points out that such allergies are the most frequent cause of anaphylaxis outside of hospital settings.

The American Academy of Allergy, Asthma and Immunology defines anaphylaxis as "a collection of symptoms affecting multiple systems in the body." The most dangerous symptoms include breathing difficulties and a drop in blood pressure, or shock, which are potentially fatal. Symptoms of anaphylaxis may develop within seconds or a few hours after ingestion of a food allergen, with the vast majority of reactions developing in the first hour. In general, the longer it takes for symptoms to develop, the less severe the reaction. One-third of children will experience a "biphasic response" in which they seem to recover and may be asymptomatic, and then experience a recurrence of symptoms. Fatal reactions have been reported after premature discharge from an emergency room in such a second-stage response. The intervening "quiescent" period generally lasts for one to three hours, so children should be observed for at least four hours after initial symptoms subside

The list of foods implicated in anaphylactic reactions is unlimited, the supplement points out, though a few foods seem to provide the vast majority of severe allergic reactions in school-age children—primarily peanuts and tree nuts, fish (e.g., cod, whitefish), and shellfish (shrimp, lobster, crab, scallops, oysters). Those foods may cause fatal or near-fatal reactions, and they also tend to induce "persistent sensitivity" in most patients, in contrast to other foods such as milk, eggs, and soybeans, which are frequently associated with milder reactions and are usually "outgrown."

There has been increased understanding during the past decade of the immunopathogenesis of food-allergic disorders, and that carries crucial lessons for diagnosing the disorders, the journal notes.

"Most reports suggest that the earlier epinephrine is administered in the course of anaphylaxis, the better the chance of a favorable outcome. Although there are no specific guidelines, epinephrine for self-administration (EpiPen) should be prescribed to any individual at high risk of severe food-induced anaphylactic reactions, the supplement advises. Preloaded syringes with epinephrine are recommended for use in emergency situations, where families or caregivers may be distraught and the situation chaotic. Most authorities agree that any food-allergic child who is experiencing severe symptoms should be given intramuscular epinephrine and transported to a hospital immediately. A number of factors may lower the threshold for when to administer epinephrine (e.g., if nonmedical personnel are caring for the child or the child is more than 15 minutes from a medical facility)." In the school context, the supplement stresses the importance of having an EpiPen readily available and not locked away where only one or two individuals have access to it.

But the life-threatening nature of anaphylaxis "makes prevention the cornerstone of therapy," the journal cautions. That means identification and complete avoidance of the responsible food allergen, particularly for children with a history of anaphylactic reaction, or allergy to peanuts, nuts, fish, or shellfish, Also in special need of prevention are allergic teenagers and patients on beta-blockers or enzyme inhibitors.

The Pediatrics supplement includes articles on diagnostic evaluation of food allergies; nutritional management of food hypersensitivity in children; skin and respiratory manifestations of food allergies; and daily coping strategies for patients and their families. Publication was sponsored by the Food Allergy and Anaphylaxis Network and Jaffe Food Allergy Institute of the Mount Sinai School of Medicine, New York, NY. Reprints of the supplement are available from hugh.Sampson@mssm.edu.

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IN CONGRESS

The House of Representatives has passed one piece of school health legislation (see first article in this issue) but many other health-related bills are pending in Congress. Here is some of the legislation that has been introduced, which may or may not pass in this congressional session.

Access to Dental Services

A bill introduced in the Senate May 23 by Senator Jeff Bingaman (D-NM) and cosponsors would allow states to provide low-income families with wraparound dental coverage through the State Children’s Health Insurance Program (SCHIP) without having to drop their private insurance. Noting that children covered by Medicaid often have trouble finding dentists to care for them, the Bingaman bill would also provide $50 million annually as financial incentives to states to improve dental health services to Medicaid-eligible children and $40 million to community health centers to hire additional dental health professionals to serve low-income populations. The bill, S. 1142, Children’s Dental Health Improvement Act of 2003, has been referred to the Senate Committee on Finance.

Vision Improvement

The Children’s Vision Improvement and Learning Readiness Act of 2003, H.R. 2173, introduced in the House May 20 by Representative Bill Pascrell, Jr. (D-NJ), would establish a grant program to provide comprehensive eye examinations to children identified or considered at high risk of vision impairment, with priority given to school-based programs for children under the age of nine. The bill would also provide funding for subsequent treatment or services to correct vision problems and to develop materials on recognizing signs of visual impairment in children. Introducing his legislation, Pascrell noted that one in 20 preschoolers and one in four school-age children is estimated to have vision problems, but only 14 percent of children under the age of six receive a comprehensive eye examination and only one-third of children have had an eye exam or vision screening prior to entering school.

Insuring Pregnant Women

A group of House members is proposing to expand or add coverage of pregnant women under Medicaid and the State Children’s Health Insurance Program (SCHIP). The Start Healthy, Stay Healthy Act, H.R. 2268, specifies that "Any reference in this title to a targeted low-income child is deemed to include a reference to a targeted low-income pregnant woman," and "Any reference to a child is deemed a reference to a woman during pregnancy"—apparently a response to a Bush administration plan to insure unborn children, but not pregnant women, under SCHIP. Under the bill, introduced by Representative Ted Strickland (D-OH), children born to pregnant women receiving pregnancy assistance would automatically be enrolled at birth in a state’s child health plan, and the woman would receive postpartum care for at least 60 days following the last day of her pregnancy.

Obesity Prevention

An Obesity Prevention Act, H.R. 2227, introduced in the House May 22, would incorporate obesity prevention treatment and services into State Children’s Health Insurance Programs (SCHIP) and would provide nutrition and health education in after-school programs. Local education agencies would be eligible to apply for pilot project grants to promote healthful eating, increase opportunities for physical exercise, and provide nutrition education to teachers, coaches, food service staff, athletic trainers, and school nurses. Funds could not be used to "disparage an agricultural commodity, food, or beverage."

Emergency Contraception

Legislation introduced in the Senate in April would establish a public education and awareness program relating to emergency contraception, the regimen of birth control pills that can prevent pregnancy when taken within 72 hours of unprotected sex. The bill’s sponsor, Senator Patty Murray (D-WA) noted that emergency contraception does not cause abortion and will not interrupt an established pregnancy, but she pointed out that nine in ten women of reproductive age in the United States remain unaware of the method. The Senate bill is S. 896, and identical legislation introduced in the House by Representative Louise Slaughter (D-NY) is H.R. 1812.

All bills referred to in this article may be read in full and tracked on the Congressional Record website http://Thomas.loc.gov.

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WORTH NOTING

Researchers Look at Relationship of Condom Availability to Sexual Behavior

A survey of 4,166 adolescents in Massachusetts high schools found adolescents in schools where condoms were available were more likely to receive condom use instruction and less likely to report lifetime or recent sexual intercourse. Sexually active adolescents in schools with condom availability programs were twice as likely to use condoms as their peers in schools where condoms were not available, but they were less likely to use other contraceptive methods, possibly accounting for the fact that researchers found no difference in pregnancy rates between the two types of schools. Importantly, the researchers said, sexual intercourse rates were not higher in schools where condoms were made available, "which supports recent research suggesting that condom distribution in schools does not lead to initiation of sexual activity." Researchers from the George Washington University School of Public Health and Health Services, the Academy for Educational Development, and the Massachusetts Department of Education conducted their study four years after Massachusetts adopted a state policy that explicitly encouraged school board consideration and public discussion of condom availability programs and instruction. Reprints of their article, "Condom Availability Programs in Massachusetts High Schools: Relationships with Condom Use and Sexual Behavior," which appeared in the June 2003 issue of the American Journal of Public Health, are available from smblake1@aol.com.

A Study of Health-Related Quality of Life in Urban School Children

A study that asked children in second, third, and fifth grades in six urban K-8 schools and their parents to rate their health-related quality of life found that "healthy" young urban children see their health-related quality of life as poorer than that of children with known chronic health conditions. "It is possible," researchers said, "that the psychosocial and emotional well-being of urban children is so poor that as a group they function similarly to children with chronic illness." Noting that schools "are pivotal to children’s intellectual, social, and emotional development," the researchers looked at school connectedness--measured by absences, feeling safe at school, getting along with others, and how much students feel teachers care for them--as a factor in children’s perceptions of their well-being. They concluded that although many of the predictors of low health-related quality of life are not modifiable, school connectedness is a potentially modifiable factor. "Health and educational programs and school health services provided through school-linked and school-based health centers may be one mechanism to improve a child’s attachment to school with concurrent reduction in risk-taking behaviors," they concluded. Reprints of the article, "Health-Related Quality of Life in Urban Elementary Schoolchildren," which appeared in the June 2003 issue of the journal Pediatrics, are available from Mona.monsour@chmc.org.

A Ten-Year Follow-up Finds Early Drinkers Have Later Problems

Individuals who became drinkers in seventh grade were more likely than nondrinkers to report academic problems, substance use, and delinquent behavior in both middle school and high school; and by young adulthood, early alcohol use was associated with employment problems, other substance abuse, and criminal and violent behavior, according to a study by RAND. Researchers who followed to age 23 individuals who began drinking at seventh grade level in 30 California and Oregon schools concluded that "Early drinkers do not necessarily mature out of a problematic life style as young adults." The researchers recommended that interventions for these high-risk youth should start early and address their other health problems, particularly their tendency to smoke and use other illicit drugs. Noting that seventh-grade drinkers generally have many other problems, the researchers suggested that efforts to curb early drinking may be more effective if they also address the co-occurring problems, which often include poor academic performance, absence from school, violent and criminal behavior, illicit drug use, and risky sexual behavior. The RAND study was published in the May 2003 issue of the journal Pediatrics. Reprints of the article, "Ten-Year Prospective Study of Public Health Problems Associated with Early Drinking," are available from phyliss.ellickson@rand.org.

May News Alerts

The following information appeared during the month of May 2003 in the News Alerts section of this website.

World Asthma Day 2003

The United States May 6 joined a worldwide effort to increase public awareness of the burden imposed by asthma and to promote better diagnosis and treatment. In the U.S. asthma is the most common chronic health condition; more than 20 million Americans, including 6 million children, suffer from it. At all ages, African-Americans are most likely to visit emergency rooms, be hospitalized, and die from asthma. The National Heart, Lung, and Blood Institute of the National Institutes of Health is the U.S. coordinator for World Asthma Day and has established "Communities Working for Life and Breath" as the national theme to emphasize that asthma affects all members of the community, not just those with the condition, and that communities must fight the potentially life-threatening illness if progress is to be made.

In a separate but related announcement, the American Lung Association in a report released this month noted that nearly half of all Americans breathe air that is polluted with ozone (smog), which leads to major respiratory problems especially for children with asthma and people with chronic bronchitis and emphysema. The report, "State of the Air, 2003," is available on the Lung Association’s website at http://lungaction.org/reports/stateoftheair2003.html.

Head Lice and the Individuals with Disabilities Education Act

A disabled student receiving special education was not entitled to compensatory education when she was excluded from school for 19 days for head lice, the Commonwealth Court of Pennsylvania decided April 4. Although the Individuals with Disabilities Education Act (IDEA) requires that compensatory education be provided if a student receiving special education is suspended or expelled from school for more than 10 days, that applies only when the student is out of school for disciplinary reasons, the court said. Lizzy S. was sent home not as a disciplinary measure but in conformance with the school district’s "no lice/no nits" policy; and she was therefore not entitled to compensatory education during or after the exclusion, the court held. The ruling applies only in Pennsylvania but may be cited as precedent by other state courts. The case was Souderton Area School District v. Elisabeth S., in the Commonwealth Court of Pennsylvania, No. 2379 C.D. 2002.

Report Cites Role of School Food in Obesity

While schools and school food programs cannot be expected to solve the problem of childhood obesity alone, some school actions may be contributing to the problem, according to a report released May 9 by the U.S. General Accounting Office (GAO). The report notes that a relatively small percentage of school districts have policies in place that require the sale of healthful choices or restrict sale of foods with little nutritional value. Only about 19 percent of districts require schools to offer fruit and vegetables as a la carte items, and only 23 percent of districts require schools to prohibit the sale of foods that have little nutritional value as a la carte items. Half of school districts have a contract that gives a company rights to sell soft drinks at schools in the district, and most of those districts receive a percentage of the sales receipts or other incentives. Also, in most schools, organizations such as student clubs, sports teams, and parent-teacher associations sell food to raise money, and the food is typically high in fats and sugars. In the regular, USDA-reimbursed school food program, school food officials are often reluctant to offer new and more healthful foods on the grounds that students may not buy them, thereby reducing the reimbursement the schools will receive from the Department of Agriculture. Schools that allow sale of alternative fast foods in their cafeterias in competition with more healthful school lunches told the GAO they needed the money to help balance their budgets. On another point –whether schools are offering classroom education about healthful eating—school officials told the GAO that the current emphasis on making sure students meet academic standards is leaving little time for subjects not on the state academic standards test.

Legislation introduced in the U.S. Senate May 7 by Senators Leahy, Lugar, Bingaman, Dodd, and Jeffords cites the obesity crisis and urges the Secretary of Agriculture to investigate the sale of foods that are outside the federal meal programs and issue regulations or enforce restrictions now in place on the sale of competitive foods from other sources, such as vending machines. In introducing his bill, S. 1007, Senator Leahy said, "We canot sell our children’s health to the highest bidder on a sodas contract."

Random Testing Doesn’t Deter Student Drug Use, Study Finds

Although the United States Supreme Court has twice ruled that it isn’t unconstitutional for schools to conduct random testing of students for drugs, even when there is no reason to suspect individual students of drug use, a federally funded study now concludes that the threat of random, suspicionless testing has little or no effect on students’ attitudes about drugs. Conceding that their study has some flaws, including that they got their data on testing from administrators—usually principals—and not from students themselves, researchers at the Institute of Social Research at the University of Michigan said they found no statistically valid difference between student drug use in schools that had testing programs and those that did not.

In two rulings—the Vernonia case in 1995 and the Earls case in 2002—the Supreme Court cited its expectation that random testing of athletes and students involved in extracurricular activities would deter drug use.

Only a small fraction, about five percent, of schools—usually high schools—are currently believed to conduct random, suspicionless testing for drugs, and in those that do there are many opportunities for mistakes, the researchers said, ranging from sloppy procedures to students’ skills at faking test results. Drug testing is costly; a single standard test to detect marijuana, tobacco, cocaine, heroin, opiates, amphetamines, barbiturates, and tranquilizers can range from $14 to $30 per test, while a test for steroids costs $100.

The article, "Relationship Between Student Illicit Drug Use and School Drug-Testing Policies," appeared in the April 2003 issue of Journal of School Health.

Survey Finds Misperceptions about AIDS Vaccine

Research to find a vaccine to prevent the human immunodeficiency virus (HIV) is under way in more than 60 medical research centers in the United States, but many Americans are convinced that such a vaccine already exists, according to the National Institute of Allergy and Infectious Diseases (NIAID) in the National Institutes of Health. Twenty percent of adults in the general population and almost half of African Americans and a quarter of Hispanics surveyed believe an HIV vaccine is being kept secret. To try to clear up the misperceptions, the NIAID and 100 organizations gave special recognition May 18 to the contributions of researchers and volunteers who are currently participating in HIV vaccine development and testing.

In the United States, an estimated 900,000 people are living with HIV, and new infections occur at the rate of 40,000 a year, half of them in people of color. Young people under the age of 25 account for half of all new HIV infections in the United States.

Information on HIV vaccine research is available at www.hvtn.org.

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June E-Journal Supplement

The Impact of FERPA and HIPAA on Privacy Protections for Health Information at School: Questions from Readers

Since we published information about the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations and about the Family Educational Rights and Privacy Act (FERPA), which applies to education records maintained by schools, we at the Center for Health and Health Care in Schools have received a number of inquiries about details of the two laws.

Here is a sampling of the questions that have been raised, and our replies. We stress that we are not qualified to provide legal opinions on these issues, and we urge questioners to submit their queries to the federal agencies responsible for enforcing HIPAA and FERPA.

We welcome any clarifications that schools may have received from their own sources on any of these points.

The FERPA/HIPAA Interface

  1. Q. Do you have the exact citation, including page number, for the HIPAA reference to school health records as subject to FERPA?

    A. We assume you are looking for the section of the HIPAA regs that says health information in student records is protected by FERPA, not HIPAA. The explanation is in the preamble to the regs at page 82483 of the Federal Register for December 28, 2000, Volume 65, Number 250.

  2. Q. Understanding that "protected health information" per HIPAA excludes education records covered by FERPA, are those records still considered "covered" by FERPA where their disclosure is allowed without consent in the circumstances listed at 34 CFR 99.31 & 99.36? Or, because the FERPA protections of required consent, notice, etc. do not apply under those circumstances, does that mean they are not covered and thereby make such records in those circumstances subject to HIPAA regulation where they contain health information?

    A. You raise one of a number of questions about the interface between HIPAA and FERPA for which there has so far been no guidance from either OCR or the FERPA compliance office in the U.S. Department of Education. The option for full disclosure of student "education records," including health information, to anyone in a school who is believed to need them in order to provide education appears to be contrary to privacy protections in HIPAA, but the issue will probably not be resolved until someone files a complaint. Please submit your questions to OCR at www.hhs.gov/ocr/hipaa and to the Department of Education at www.ed.gov//offices/OM/fpco.

FERPA/HIPAA: Sharing Immunization Information

  1. Q. School Nurses at our six SBHCs in Worcester, MA make many referrals to the SBHC Nurse Practitioner/Physician Assistant for immunizations and school or sport physicals. It is unclear to me whether the School Nurse can share the student's immunization record with the SBHC staff. Or, can the SBHC Medical Provider provide the School Nurse with documentation that a vaccine has been administered or a school physical exam conducted, without a parental consent for release of information? Any clarification would be appreciated.

    A. With some exceptions, such as law enforcement or research, HIPAA "covered entities" are barred from providing health information to non-HIPAA entities unless authorized by the individual patient. Exchange of health records between a school-based health center operated by a hospital or other HIPAA-covered entity and a nurse employed by a school district would therefore seem to require authorization. This may not be true of immunization records that are subject to disclosure under state law. We urge you to submit your question to the Office for Civil Rights responsible for enforcing HIPAA. The OCR home page, at www.hhs.gov/ocr/hipaa includes a button to click for asking a question. You may also want to consult your state attorney general for clarification of your state's immunization laws.

  2. Q. In the past we have been able to share this information without signed release because it is necessary for school entry, documentation, etc. Will this still be true under the HIPAA privacy regulations?

    A. Both FERPA and HIPAA regulations are silent on the subject of immunization, and this is a question that may have to be submitted to the HIPAA website or to your state attorney general. The regulators specify that HIPAA is not meant to supercede existing state or federal laws, and most states have laws concerning exchange of immunization information. The HIPAA website is www.hhs.gov/ocr/hipaa , and questions are invited. FERPA information is available at the Family Policy Compliance Office of the U.S. Department of Education at www.ed.gov//offices/OM/fpco.

  3. Q. Under HIPAA or FERPA, when a school nurse gives a child a required immunization, and updates the child's school district immunization record, can the immunization information also be shared with a County Health Department Immunization Database, which will be accessible to other medical professionals?

    A. The issue of immunization records is not discussed, as far as we can tell, in either HIPAA or FERPA laws or regulations. What the HIPAA regulations do say, however, is that HIPAA does not negate existing state or federal laws. Since immunization record-sharing is usually subject to state law, we urge you to consult your state attorney general for clarification of this question. You might also submit the inquiry to the HHS Office for Civil Rights at www.hhs.gov/ocr/hipaa.

FERPA and "Legitimate Educational Interests"

  1. Q. Would you please clarify what the exact meaning of the phrase "legitimate educational interest" in FERPA?

    A. This issue is not addressed in regulations for FERPA., However, the Education Department points to a "Model Notification for LEA Officials" posted on its FERPA website at www.ed.gov/offices/OM/fpco, which explains that disclosures of personally identifiable information in a student's educational recorded may be made without consent to a school official "needs to review an educational record in order to fulfill his or her professional responsibility."

    The notice goes on to define "A school official" as "a person employed by the School as an administrator, supervisor, instructor, or support staff member (including health or medical staff and law enforcement unit personnel); a person serving on the School Board; a person or company with whom the School has contracted to perform a special task (such as an attorney, auditor, medical consultant, or therapist); or a parent or student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks."

  2. Q. With respect to the "need to know" provision of FERPA, if a student has a diagnosis of diabetes, would the school nurse be protected if she shares this with a teacher, bus driver, etc. because she feels they need to know about the health condition while the student is at school or riding the bus. I thought a parent or guardian's permission to share this information was needed.

    A. Regulations for the Family Educational Rights and Privacy Act (FERPA) say in Section 99.31 (a) that an educational agency or institution may disclose personally identifiable information from an education record of a student without prior written consent "if the disclosure. is to other school officials, including teachers, within the agency or institution whom the agency or institution has determined to have legitimate educational interests." It's possible that state law or local practice may require prior consent, but FERPA does not.

  3. Q. I work as a school nurse in a public school. My principal believes that all student health information should be accessible to all administrators, trainers, teachers and aides. She is insisting that she have a copy of all Nursing Individual Health Care Plans developed for students that she will share with other personnel as she sees fit. I am very uncomfortable sharing psychiatric, HIV and other confidential information. Please clarify this issue for me.

    A. Under FERPA, when information in a student’s educational record is disclosed for purposes of "legitimate educational interest," the information can be passed on to others who also have "legitimate educational interest" without consent from parents or students. The regulations don’t define what is meant by "legitimate educational interest" and the Education Department says that is up to local schools or districts to decide.

  4. Q. I still don't understand the issue of legitimate need to know. There are times when the health records of students do not impact the students education or academic performance at all I feel that in this case, there is no reason for the information to be shared with any one other than the nurse if that is what the parent and student desire. If the health information is not impacting their education and there are no accommodations being made, then how does being a member of the school staff automatically qualify as " a legitimate need to know"? Our health records are separate from the academic ones, but our staff members are requesting that we begin to include copies of health records in their academic files and I am not comfortable with this.

    A. The FERPA regulations say student records may be released without parental authorization to school officials "whom the agency or institution has determined to have legitimate educational interests." This seems to leave it up to the school or school district to set policy on release of information. FERPA was passed before health privacy became an issue, and the questions you raise aren't addressed in the FERPA regulations. In light of the coming implementation of HIPAA, perhaps school boards will want to look at this issue.

What is a "HIPAA Transaction"?

  1. Q. What exactly is a "HIPAA transaction"?

    A. HIPAA transactions are defined in the Code of Federal Regulations as "the transmission of information between two parties to carry out financial or administrative activities related to health care," including submission of claims.

  2. Q. If a school district submits electronic transactions for Medicaid services, to what extent are they required to comply with HIPAA? The standards are one thing but there is also extensive training and awareness that needs to occur. Also, how do you identify who needs to be trained? How do schools take on the financial burden of compliance? The burden may potentially outweigh the actual Medicaid benefits received for the medical services. Have any guidelines or procedures been published for schools that will help with evaluating current practices and the scope of changes and costs needed for compliance?

    A. It is our reading of the preamble to the December 2000 final HIPAA regulations that if a school or school employee engages in a "HIPAA transaction," (defined in the Code of Federal Regulations as "the transmission of information between two parties to carry out financial or administrative activities related to health care," including filing claims), the school becomes subject to HIPAA regulation. Such transmissions also would presumably be subject to the electronic security regulations for HIPAA published this year. As to whether any guidance exists specifically for schools, we have not yet found any. We urge you to submit your question to the Office for Civil Rights at www.hhs.gov/ocr/hipaa and/or to your school district's attorney and/or your state attorney general.

  3. Q. The Special Education Department in our public school system bills Medicaid for services rendered to special education students. Because they bill and receive reimbursement, do they now follow HIPAA regulations or continue to follow FERPA?

    A. The preamble to the December 2000 final rules, in the section exempting school education records from HIPAA privacy regulations, also reads in part: "The educational institution or agency that employs a school nurse is subject to our (HIPAA) regulation if the school nurse or the school engages in a HIPAA transaction." HIPAA transactions are defined in the Code of Federal Regulations as "the transmission of information between two parties to carry out financial or administrative activities related to health care," including submitting claims.

Other Important Questions

  1. Q. When a school district nurse or special education teacher obtains a medical report from an out-of-district health care provider, can this medical report become an "education record"? Can it be transferred to another district when a child moves along with all the other education record contents? Should these medical reports be solely kept in a separate health file? Does the law allow them to be a part of a special education file?

    A. The issue of medical information is not addressed in FERPA, which was enacted long before the current issue of protecting individuals’ medical privacy arose. Where medical records do come into the picture for schools is in the preamble to December 2000 regulations for the Health Insurance Portability and Accountability Act (HIPAA), which says that "individually identifiable health information of students under the age of 18 created by a nurse in a primary or secondary school that receives federal funds and is subject to FERPA is an education record but not [HIPAA] protected health information. it seems to us from reading the regulations that no matter what the source of a student’s medical information, if it is entered into the student’s record by a school nurse, it becomes, by the HIPAA definition, part of the "education record" that can be handled like all other information in the record. There is nothing to indicate there should be separate health files, though we assume a school district could develop a policy on that point. Since information about students who receive special education under the Individuals with Disabilities Education Act (IDEA) is also exempted from the definition of "protected health information" in the HIPAA regs, it would seem nothing prevents health files from being part of a special education file.

    We stress that none of these questions has been addressed by the federal agencies responsible for FERPA and HIPAA. Perhaps you would like to try your questions on them, at www.hhs.gov/ocr/hipaa and www.ed.gov/offices/om/fpco . You may also wish to raise this question with your school board -- which, in turn, may refer the question to its legal counsel.

  2. Q. We are a private predominately residential high school that operates a health service on campus providing outpatient services for our students. A physician, nurse practitioner, nurses, counselors, health educators, and athletic trainers, all of whom are employed by the school, provide those services. We are also licensed for 14 beds by the State for use by students as may required. We bill parents or an optional school insurance program for selected of those services. It remains unclear to us whether any or all of the HIPAA regulations apply?

    A. Since your school health service provides health care and bills for it, it seems the service must be a HIPAA-covered entity. Also, the preamble to the December 2000 HIPAA final regulations reads in part: "The educational institution or agency that employs a school nurse is subject to our (HIPAA) regulation as a health care provider if the school nurse or the school engages in a HIPAA transaction." A HIPAA transaction is defined in the Code of Federal Regulations as "the transmission of information between two parties to carry out financial or administrative activities related to health care."

  3. Q. How do FERPA/HIPAA requirements affect a school that requires random drug testing? Do these standards change when the child reaches 18 years?

    A. It's not clear to us how random drug testing programs fit into FERPA. In most court-approved test programs we've heard of, positive test results are to be given only to parents and not used for disciplinary or other actions by the school. But are schools entering the test information into students' education records, which are subject to FERPA? If so, FERPA confers the right to see their records to students when they reach age 18. There seems to be another question: how does the school comply with the privacy promises in the drug testing program if it enters the test results into student records, which the school may have a policy of releasing to teachers or others who need the information in the records in order to rovide education? We'd be interested in hearing how your school handles this.

  4. Q. What happens when a school nurse is not an employee of the school system, but rather an employee of the local Department of Health and is working in the school through an interagency contract? Do HIPAA or FERPA standards and regulations apply? Is the health record under the jurisdiction of the health department or the school system?

    A. The preamble to the December 2000 HIPAA regs simply say that health information entered by "a school nurse" becomes part of the education record; there is no definition of what is meant by "a school nurse," and the regulators probably didn't realize that school nurses are sometimes employees of agencies other than schools. This may be one for the lawyers, or you might try asking your question of the HIPAA website, www.hhs.gov/ocr/hipaa.

  5. Q. Can you advise if FERPA would prohibit a student aide who had signed a confidentiality statement, from filing immunization records in a student's file?

    A. The U.S. Department of Education says that so long as the school has informed the student that nothing he or she encounters is to be talked about to other people, and so long as the school will take disciplinary measures if the student aide violates the confidentiality agreement, there is no reason under FERPA that a student assistant cannot enter information into another student’s education record.