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Disclosure of Health Information Sends School District to Court A federal appeals court ruled April 16 that a case involving verbal and physical abuse of a schizophrenic high school student by other students should be sent back to a lower court to determine if the student’s civil rights were violated when his medical diagnosis was disclosed "to the school community" by the district’s health paraprofessional. The student’s parents had filed suit under the Family Educational Rights and Privacy Act (FERPA); Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of handicap in programs receiving federal assistance; and Section 1983, a post-Civil-War statute intended to prevent denial of rights by persons acting "under color of state law." Sixteen-year-old M.P. lived with his parents and attended school in the New Prague School District in Minnesota. During his eighth-grade year, the parents informed school administrators of his diagnosis of schizophrenia. The district developed a Section 504 Accommodation Plan in which teachers were asked to monitor the student for anxiety and anger management problems. At the same time, M.P. began taking medication for his schizophrenia, and there was noticeable improvement in his behavior. The assessment team amended the Section 504 plan twice in 1999, to reflect M.P.’s changing needs as a result of his positive response to his new medications. Then, on January 10, 2000, the health paraprofessional, Arlene Pexa, "disclosed M.P.’s schizophrenia to the school community," apparently after she asked the mother about a change in M.P.’s prescription. Though M.P.’s mother reported Pexa’s disclosure to the school social worker, no action was taken, and within a short period of time M.P.’s medical information became common knowledge within the student body and he was called "druggie," "fag," "psycho," "weirdo," "mental kid," "special," "squealer," and "idiot," among other names, and was shoved into a drinking fountain, picked up by his throat, slammed into lockers, thrown to the floor, scratched, spit on, and cut. The appeals court noted that M.P. "never had experienced such treatment by classmates before Pexa’s disclosure of his medical information." The parents removed their son from the school district and filed suit against the district, charging violation of his privacy under the Family Educational Rights and Privacy Act (FERPA), as well as civil rights violations under Section 504 and Section 1983. The federal District Court for the District of Minnesota ruled in favor of the school district on all counts, but the appeals court reversed the lower court on the Section 504 claim and sent the case back for a new look at that part of the ruling. The appeals court did not contest the district court’s opinion that "no private right of action exists under FERPA." The case was M.P. v. Independent School District No. 721, New Prague: Arlene Pexa, in the United States Court of Appeals for the Eighth Circuit, No. 02-2608. The ‘Private Action’ Question in FERPA The district court in the New Prague case held that "no private right of action exists" under the Family Educational Rights and Privacy Act (FERPA), meaning that individual parents or students cannot bring lawsuits under that law if they feel their privacy rights have been violated. The appeals court noted but did not dispute this finding. However, in 2002, the U.S. Supreme Court ruled in a FERPA case brought by parents who questioned the practice of "peer grading," charging that it violated student rights to privacy of their education records. In that instance, the Supreme Court said, "This Court assumes, without deciding, that FERPA provides private parties with a cause of action enforceable under Section 1983." Since the Supreme Court has not "decided" whether there is a right to private action under FERPA, that leaves lower courts such as the district court in the New Prague case free to rule either way. That could change, however, if Congress were to pass a bill introduced April 29 by Representative Robert Andrews (D-NJ). Andrews’ legislation would amend FERPA to give students and parents the right to civil remedies, including treble damages, if they were denied "any of the rights of privacy of and access to educational records" established by FERPA. The bill, H.R. 1848, has been referred to the Committee on the Judiciary and the Committee on Education and the Workforce for consideration. A FERPA Correction
An article in the April issue of Health and Health Care in Schools suggested that school nurses be aware that the definition of "education records" in the Family Educational Rights and Privacy Act does not include information placed in the records by professionals such as physicians and intended to be used only in connection with treatment of the student. That exception applies only when students reach the age of 18 or are attending an institution of higher education. We regret the error. ------------------------------------------------------------------- Pupil Rights Law Allows Parents to Opt Students Out of Surveys A 1998 federal law, the Protection of Pupil Rights Amendment (PPRA), allows parents to inspect instructional materials used in connection with any U.S. Department of Education-funded "survey, analysis, or evaluation." The law, often called the "Hatch amendment" or the "Grassley amendment" for the members of Congress who introduced it, also requires schools to obtain written parental consent before minor students participate in Education Department-funded surveys that ask questions about personal or family matters. As the result of recent amendments to PPRA in the No Child Left Behind education law (Public Law 107-110, signed January 8, 2002), parents have additional rights to examine materials with regard to the surveying of minor students, even when the surveys are not Education Department-funded, and to opt their children out of surveys and certain non-emergency medical examinations. The Family Policy Compliance Office (FPCO) in the U.S. Department of Education, which administers the Family Educational Rights and Privacy Act (FERPA), has responsibility for the expanded Protection of Pupil Rights law, also known as the "Tiahrt amendment." The original PPRA law required schools and contractors to make educational materials available for inspection by parents and provided a list of survey questions that would trigger the need for written parental permission. Those requirements remain in place. The trigger questions include inquiries about:
The PPRA compliance office in the U.S. Department of Education points out that these requirements apply when a survey is funded, at least in part, by any program administered by the U.S. Secretary of Education. Under the Tiahrt amendment that took effect in 2002, additional requirements are now in place, and they apply as well to surveys funded by sources other than the U.S. Department of Education. The law now requires public elementary and secondary schools to "develop and adopt policies—in conjunction with parents," regarding:
Schools must notify parents of their PPRA policies at least once annually and must give parents ample opportunity to opt out (remove their child) from participation in surveys containing one or more of the eight items of information specified in the original law. Parents are also allowed to remove their children from any non-emergency invasive physical examination or screening that is required for attendance or is not necessary to protect the immediate health and safety of the student or other students. Explanation of the Protection of Pupil Rights Amendment is posted on the Education Department’s Family Policy Compliance Office website at www.ed.gov/offices/OM/fpco/ppra/index.html. The compliance office indicates it will publish regs covering the new parts of the law.
------------------------------------------------------------------- Report Cites Effects on Communities When Families Lack Health Insurance A report by the Institute of Medicine (IOM) of the National Academy of Sciences calls attention to the effects on communities when individuals and families lack health insurance. The report, fourth in a series being prepared by the IOM with funding by the Robert Wood Johnson Foundation, notes that while those effects are hard to see at the national level, they are vivid at the state and local level. For example, the report points out, though the national uninsured rate for persons under the age of 65 is 16.5 percent, that doesn’t reflect substantial variation among communities, where the number of uninsured is often much higher than the national average. There’s also the matter of access to care. "A community’s high uninsured rate has adverse consequences its health care institutions and providers. These consequences reduce access to clinic-based primary care, specialty health services, and hospital-based care, particularly emergency medical services and trauma care, and may also result in lessened availability of other primary and preventive care and the closure or privatization of community hospitals." The Institute of Medicine’s Committee on the Consequences of Uninsurance, which prepared the report, hypothesizes that communities with large numbers of uninsured persons are also hurt economically. Health insurance costs go up because providers try to spread their unreimbursed costs across all patients, and that can lead employers to drop or cut back on health insurance for employees. And some of the community’s health services institutions and medical practices may close because they’ve been inadequately reimbursed. Providers’ revenues are often lower in areas with high uninsured rates, because uninsured persons on average use fewer services than do the insured and the care they do receive is typically not paid for in full. The committee also noted the effects of uninsurance on the physical health of a community. Surveys have shown that persons in lower-income families living in urban areas where large numbers of persons are uninsured are more likely to report fair or poor health status than their counterparts in areas with better insurance coverage. That fact alone can have spillover effects on an entire community, weakening its ability to respond to mass casualty events and causing delays in detecting and treating communicable diseases, the committee said. "It is both mistaken and dangerous to assume that the persistence of a sizable uninsured population in the United States harms only those who are uninsured." At an April 30 Senate hearing on health care access and affordability, where the IOM report was presented, subcommittee member Senator Tom Harkin (D-IA) echoed the report’s conclusions on the effects of uninsurance. "Part of the problem," Harkin said, "is that those of us with insurance haven’t cared enough. Special interests have gotten in the way, and partisan politics have left the uninsured behind. But this issue impacts each and every one of us. We’re all on this sinking ship together, and we must address this problem." Speaking for the Robert Wood Johnson Foundation, which is funding a series of six reports by the IOM committee, President and Chief Executive Officer Risa Lavizzo-Mourey called attention to the need for new approaches to the problems of uninsurance but cited "things we can do now to help alleviate the problem." For one, she said, many uninsured children who are eligible for free or low-cost medical coverage through SCHIP [the State Children’s Health Insurance Program] or Medicaid do not have coverage because their parents are unaware that the children are eligible. She noted that in August, the foundation will launch its fourth annual back-to-school campaign, using paid and free advertising to let families know they may be eligible for SCHIP or Medicaid. Information about the Institute of Medicine reports on lack of health insurance is available at www.iom.edu/uninsured. Information about the Robert Wood Johnson Foundation’s initiatives and funding opportunities is available at www.rwjf.org -------------------------------------------------------------------
Researchers See Limited Use of Alternative Medicine by Children Fewer children than previously reported appear to use complementary
or alternative medicine in the United States, according to a report
in the April 2003 issue of the journal Archives of Pediatrics and
Adolescent Medicine. Parents of some 6,000 children were asked in
a survey if their children had received any of the following treatments:
acupuncture, nutritional advice or lifestyle diets, massage therapy,
herbal remedies, biofeedback training, training in or practice of meditation
or relaxation techniques, homeopathic treatment, spiritual healing or
prayer, hypnosis, or traditional cultural medicine. Using those definitions,
researchers found the incidence of alternative medicine use to be approximately
1.8 percent of the population surveyed, much lower than generally quoted
current estimates of from 10 percent to 15 percent of all children in
this country. Scientists Develop New Test for Tuberculosis The British medical journal The Lancet reported in April that
scientists have discovered a new diagnostic test for tuberculosis that
could help control the disease by more accurately detecting infections
before people get sick. The test differs from the long-used tuberculin
skin-prick test, which tests for antibodies. That test can give false-positive
readings in people who have had the BCG tuberculosis vaccine, since
antibodies are made in both case. The new test, also a blood test, instead
of looking for antibodies detects the activation of immune cells called
T-cells and is believed to detect latent infections more accurately.
The World Health Organization estimates that two billion people, one-third
of the world’s population, are infected with the bacteria that causes
tuberculosis, and about 10 percent of them will progress from latent
infection to full-blown disease. Mounting Student Depression Taxes Campus Mental Health Services College students face lots of stressors—leaving family and longtime friends, new relationships, parents in the throes of divorce, pressure to succeed academically, and facing graduation with substantial student loans, for a few—and against this backdrop growing numbers of students are seeking help for depression and other psychological disorders. But student health services and campus counseling centers often have not kept up with the increased demand for treatment, according to an article in the April 23 issue of the Journal of the American Medical Association. The peak onset of depression symptoms in the general population is between 15 and 19 years, but for most students, diagnosis will not be made until many years later, researchers said. The Depression and Bipolar Support Alliance, a national mood disorders advocacy group, puts the average age of diagnosis for unipolar depression at 17 years and for bipolar disorder at 21 years. Meanwhile, "Getting students into care in a day or two is crucial," said one campus health services director. --------------------------------------- House of Representatives Passes IDEA Reauthorization In the first step toward reauthorizing and amending the Individuals
with Disabilities Education Act, the U.S. House of Representatives voted
April 30 to provide funds for early identification and treatment of
conditions that might lead to need for special education. The House
bill, H.R. 1350, also aims to reduce special education paperwork and
to allow discipline of special education students who commit infractions
for which regular students are disciplined. The Senate is expected to
pass its version of an IDEA reauthorization in the next few weeks. April News Alerts The following information appeared during the month of April 2003 in the News Alerts section of this website. SARS Added to Quarantinable Diseases Severe acute respiratory syndrome (SARS) has been added to the list of communicable diseases for which patients may be quarantined involuntarily; and clinicians should report any suspected cases to their state health departments or the Centers for Disease Control and Prevention, Health and Human Services Secretary Tommy Thompson said April 4. Thompson stressed that the quarantine authority would be used only if someone posed a threat to public health and refused to comply with a request for isolation. "We’re working to be prepared for any eventuality," Thompson said. SARS, a highly contagious illness that appears to have originated in China and has caused a number of deaths there and in Canada, is characterized by fever, coughing, and shortness of breath. Especially at risk of spreading the disease are persons who have recently returned from travel to mainland China, Hong Kong, Vietnam, or Singapore. Report on Future of Children Emphasizes Health Insurance In its most recent report on the future of children in the United States, the David and Lucile Packard Foundation April 8 released an analysis of the current status of health insurance for children, noting that state and federal budget deficits are threatening to undo gains made between 1998 and 2001 in the number of children who are insured. "Reform is needed in how these programs are financed to assure that currently enrolled children keep their coverage and that the programs continue to grow," the foundation said. As many as 8.5 million children (11.7 percent of all children) still lack health insurance, the report points out, and continued focus on simple and convenient enrollment and renewal systems, as well as outreach and education efforts, are needed to reach them, with special efforts targeted to groups over-represented among the uninsured, such as Latino and other minority children, children in immigrant families, and adolescents. A transcript of the report and related links and resources is available at www.kaisernetwork.org. MMWR Explains Public Health Role in HIPAA In a comprehensive report released April 11, the Morbidity and Mortality Weekly Report (MMWR) of the Centers for Disease Control and Prevention (CDC) attempted to clarify the relationship between the Health Insurance Portability and Accountability Act (HIPAA) and state, local, and federal departments of public health. Useful as a guide to the complex HIPAA rules in general, the report cites the instances in which individually identifiable protected health information may be released to a public health agency without patient authorization. The report, "HIPAA Privacy Rule and Public Health," is available at www.cdc.gov/mmwr. HHS Outlines Its Procedures for Enforcing HIPAA Noting that "the duty to comply with certain of the HIPAA rules is now a reality for any, if not most, covered entities," the Office for Civil Rights (OCR) in the U.S. Department of Health and Human Services April 17 published the general approach it will use to enforce the Health Insurance Portability and Accountability Act (HIPAA). In general, the OCR said, it intends to "seek and promote" voluntary compliance with provisions of HIPAA that require health plans, health care clearinghouses, and most health care providers to protect the privacy of individually identifiable health information and to follow HIPAA regulations concerning electronic transmission of health information and HIPAA-covered transactions. The 27-page interim final rule covers such points as civil monetary penalties, procedures for investigations, imposition of penalties, and hearings and is intended as the first of a series of "enforcement rules" to be issued by the agency. The full text of the announcement is available in the Federal Register for April 17. Guidance for Management of Students Exposed to SARS The Centers for Disease Control and Prevention (CDC) has developed Interim Domestic Guidance for Management of School Students Exposed to Severe Acute Respiratory Syndrome (SARS). The guidance is available on the CDC website at www.cdc.gov/ncidod/sars/exposurestudents.htm. Clinicians can ask specific questions about SARS by telephone at 1-877-554-4625. Two States to Insure Unborn Children in SCHIP Michigan and Rhode Island have become the first states to expand prenatal care to unborn children under the State Children’s Health Insurance Program (SCHIP), Secretary of Health and Human Services Tommy Thompson announced April 18. The two states are taking advantage of a new HHS regulation allowing them to provide prenatal services under SCHIP to children who otherwise would be eligible for Medicaid or SCHIP coverage only after they were born. The regulation allowing states to insure unborn children appeared in the Federal Register March 5, 2002. Mentally Ill Children Often Placed in Systems Not Prepared to Serve Them In the year 2001 alone, parents in 19 states placed more than 12,700 children into child welfare or juvenile justice systems so the children could receive mental health services, although neither system was designed to provide such services, according to a report released April 22 by the U.S. General Accounting Office (GAO). Misunderstandings among agency officials, difficulties in meeting eligibility requirements, limited help from mental health agencies and schools, limited health insurance coverage, and shortages of mental health services were identified as reasons that families may make the difficult decision to give up custody of their children, the report notes. The GAO report, "Federal Agencies Could Play a Stronger Role in Helping States to Reduce the Number of Children Placed Solely to Obtain Mental Health Services," is available online at www.gao.gov. Obesity Study Due Next Year A congressionally mandated study to assess the factors responsible for the epidemic of obesity in childhood and to develop an action plan focusing on prevention is expected to be completed by June 2004, according to an April 22 announcement by the National Institute of Medicine, which is conducting the study. The study will assess the social, environmental, medical, dietary, and other factors responsible for the increasing prevalence of childhood obesity, with emphasis on environmental and cultural factors. The study is sponsored in part by the Center for Disease Control and Prevention’s Division of Nutrition and Physical Activity and the National Institute of Child Health and Human Development, and by the Robert Wood Johnson Foundation. HIPAA Survives a Court Challenge The complicated and controversial Health Insurance Portability and Accountability Act (HIPAA) survived one its first challenges April 25, when a federal appeals court ruled that it was not unconstitutional for the Department of Health and Human Services to issue privacy regulations. The South Carolina Medical Association, Physicians Care Network, and several individual physicians had filed suit charging that by giving the Department of Health and Human Services authority to issue regulations that interpret the law, Congress delegated its legislative responsibility to an agency of the executive branch, in violation of the separation of powers. The physicians also charged that by applying HIPAA privacy regulations to all forms of health communication, written, electronic, or oral, HHS exceeded Congress’ original intention in HIPAA, which was to protect health information in the electronic age. And finally, the physicians charged that regulations giving state laws preemption over HIPAA if the state laws are "more stringent" than HIPAA in protecting individual privacy are too vague and call for subjective judgments on the part of health care providers. Responding to each of the charges, the United States Court of Appeals for the Fourth Circuit concluded that the regulations issued by the Department of Health and Human Services meet constitutional and other standards. "Because Congress laid out an intelligible principle in HIPAA to guide the agency action, we reject appellants’ claim that the statute impermissibly delegates the legislative function. We also conclude that regulations promulgated pursuant to HIPAA are not beyond the scope of the congressional grant of authority, and that neither the statute nor the regulations are impermissibly vague," the court said. The case was South Carolina Medical Association et al v. Tommy Thompson as Secretary and the U.S. Department of Health and Human Services. |