RD239 - Information Sharing Guide for K-12 Public Schools – March 2020

Executive Summary:

In the current school climate, the health and safety of students, staff, and visitors has become paramount. Commensurate with this concern is the need for school and law enforcement personnel to have the ability to access and share critical student educational, health and safety related information while balancing this need with the student’s protected right of privacy. To that end, this information sharing guide is intended to serve as a resource for school and law enforcement personnel to help them identify issues for discussion with their legal counsel when considering how they can share and/or access pertinent student information in an effective and timely manner.(*1) This guide focuses on the ways in which administrators, teachers, counselors, threat assessment teams, and members of law enforcement can work with their legal counsel to carry out their mission of risk reduction, while respecting the requisite confidentiality of the student.

Accordingly, this guide focuses primarily on the Family Educational Rights and Privacy Act (FERPA), which protects the confidentiality of student education records and the personally identifiable information (PII) contained therein, as well as attendant Virginia law that serves as the basis for student record confidentiality. The Health Insurance Portability and Accountability Act (HIPAA), which protects the confidentiality of student medical records, rarely applies to public schools since most school records, to include counseling and school nurse records, are covered by FERPA. Therefore, the primary thrust of this guide is geared towards FERPA as FERPA provides students with certain privacy rights, but also gives schools and divisions flexibility to disclose PII, in health and safety emergencies and other specified circumstances, as summarized below and described in more detail in applicable regulations. The purpose of this guide is to highlight questions about how FERPA applies to schools’ and divisions’ disclosures of PII from student education records to school officials, school security units, outside law enforcement entities, school resource officers (SROs), other schools, and otherwise.

FERPA affords schools and divisions flexibility when responding to circumstances that could threaten the health or safety of individuals in their school community. Understanding the provisions of FERPA relative to such circumstances will facilitate conversations between school officials and their legal counsel, so that decisive, quick action can be taken when challenges arise. The following frequently asked questions detail how FERPA may apply in these circumstances. Although this guidance is focused on FERPA, there may be other federal and state laws, such as civil rights and privacy laws that are also relevant to decision-making about students. At the federal level, for example, public elementary and secondary schools are subject to federal civil rights laws, including laws that prohibit discrimination based on: disability (the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973); race, color, and national origin (Titles IV and VI of the Civil Right Act of 1964); sex (Title IX of the Education Amendments of 1972); and religion (Title IV of the Civil Rights Act of 1964). Information disclosure decisions are not likely to implicate these laws, however, so long as decisions are made in a non-discriminatory manner. Also, state educational agencies and local educational agencies must comply with the requirements of Part B of the Individuals with Disabilities Education Act (IDEA) in educating children with disabilities, including IDEA’s confidentiality of information requirements.

The second part of this guide focuses on Mental Health Care Providers: The Duty to Warn in terms of the types of records that relate to the health and medical treatment of a student, including their physical as well as their mental health. It also delineates the circumstances under which school personnel, including threat assessment team members and law enforcement personnel, may access otherwise confidential student medical records, and under what conditions that information can be shared and with whom.

Finally, this guide sets forth practical considerations for developing a Memorandum of Understanding between schools and law enforcement that addresses key information sharing issues.
(*1) This guide is not intended to provide legal advice, and should not be viewed as a substitute for legal advice from legal counsel consulted specifically by schools, divisions and/or law enforcement entities to provide such advice regarding the legal rules and considerations that apply in particular circumstances. Schools, divisions and law enforcement entities are encouraged in all cases to seek legal advice from their own counsel regarding the types of issues that are highlighted, in introductory, summary form only, in this guide.