United States: Using Student Medical Records: Department Of Education Issues New Guidance

Last Updated: September 3 2015
Article by Paul G. Lannon

Paul Lannon Jr. is a partner in Holland & Knight's Boston office


  • In determining when higher education institutions are allowed to use student medical records other than for a student's healthcare, the institutions have to balance students' privacy interests, including federal rights under FERPA, against legitimate institutional needs.
  • Too much access may facilitate misuse or discourage students from seeking campus-based medical services, while too little access may deprive an institution of information important to satisfying a legal obligation or responding effectively to a health or safety emergency.
  • Student medical records may be reviewed by school officials fulfilling their duties on threat or behavior assessment teams.

When is it legal and proper for higher education institutions to use student medical records other than for a student's healthcare? In answering that question, institutions have to balance students' privacy interests, including federal rights under the Family Educational Rights and Privacy Act (FERPA), against legitimate institutional needs. Finding the right balance is not always easy, as highlighted by recent well-publicized cases. Too much access may facilitate misuse or discourage students from seeking campus-based medical services, while too little access may deprive an institution of information important to satisfying a legal obligation or responding effectively to a health or safety emergency.

FERPA and Commonly Used Exceptions

In an effort to aid institutions in striking the right balance between privacy rights and legitimate institutional needs, the U.S. Department of Education (DOE) issued new guidance on this hot topic in a "Dear Colleague" letter, dated Aug. 18, 2015. The DOE was careful to note that its letter "does not create or confer any rights for or on any person, nor does it impose any requirements beyond those required under applicable law and regulations." Rather, the letter is intended to clarify the DOE's interpretation of the applicable FERPA regulations as well as its views on the proper use of student medical records in certain situations to avoid unnecessary risk of harm to students.

FERPA generally prohibits disclosure of personally identifiable information (PII) from a student's education records absent signed and dated consent. Consent is not required under certain limited exceptions. The Dear Colleague letter addresses four of the more common exceptions:

  • treatment records
  • school officials
  • litigation
  • health or safety emergencies

Regardless of which exception applies, the DOE cautions that institutions "only should disclose the minimum amount of PII necessary for the intended purpose." The DOE "recommends that institutions give great weight to the reasonable expectations of students that the records generally will not be shared, or will be shared only in the rarest of circumstances, and only to further important purposes, such as assuring campus safety."

Treatment Records

Medical treatment records are not subject to FERPA, and no written consent is required for their disclosure provided that three criteria are met. The records must be:

  1. directly related to a student at least 18 years old attending a post-secondary institution
  2. made or maintained by a recognized medical professional or paraprofessional acting in their professional capacity
  3. made, maintained or used only in connection with treating the student

This exception to the consent requirement for treatment records does not apply if an institution uses the records for any purpose other than the student's medical treatment. Treatment records used for other purposes become education records subject to FERPA.

School Officials and Behavior Assessment Teams

FERPA permits the disclosure of student medical records without consent to school officials, including faculty, administrators and legal counsel, provided that the institution has determined that those officials have a "legitimate educational interest" in the student records. The DOE interprets this exception to require a determination that the school official needs "to review an education record in order to fulfill his or her professional responsibility." This exception would permit, for example, a disability services officer to review medical records related to a student's disclosed disability – but not records of unrelated health issues.

The school official exception is critically important to the effective functioning of campus threat or behavior assessment teams. The designated school officials may properly share information from student medical records to fulfill their professional responsibilities on threat or behavior assessment teams. If, for example, "a campus counselor or mental health professional has concerns about a student's safety (or the safety of others) due to behavior that is harmful or escalating, he or she may share education records, including medical records, with the threat assessment team under the school official exception." The DOE states further that if the team determines that an "articulable and significant threat" has developed, the institution may make further disclosures under the health or safety emergency exception discussed below.

Health or Safety Emergency

Institutions may review and use student medical records when they have determined that a student "poses an articulable and significant threat to self or the health or safety of other individuals." According to this exception, school officials may disclose student medical records to "any person whose knowledge of information from those records will assist in protecting the student or others from the threat," including law enforcement, healthcare professionals and parents. In making this determination, the DOE "generally defers" to the institution's judgment.


FERPA does not require consent before an institution may disclose to a court or government agency student records that are relevant to a lawsuit by or against the student. The DOE advises that institutions should use this exception only if the lawsuit "relates directly to the medical treatment or the payment for such treatment." The more complicated question is when is it proper for institutions to access student medical records to address issues concerning the student's credibility or claims for emotional distress damages in lawsuits involving alleged discrimination, harassment and other claims not directly related to the provision of medical treatment. In those circumstances, the DOE advises generally that attorneys representing institutions should not access student medical records without written consent or a court order. Institutions are well-advised to seek legal advice in deciding when to use student medical records without the student's consent or a court order.

While not breaking any new ground, this latest Dear Colleague letter does provide helpful guidance for complying with federal law when determining whether and under what circumstances to use personally identifiable information from student medical records. In addition, institutions must also consider the impact of state privacy laws and the professional ethical obligations of its healthcare providers. Balancing those various interests will continue to be challenging for all involved.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.