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


  • Through a Dear Colleague Letter addressed to the higher education community, the U.S. Department of Education has released "significant guidance" on the application of the Family Educational Rights and Privacy Act (FERPA) to the release of student medical records generally, and specifically in the context of litigation.
  • When evaluating whether to disclose student medical records pursuant to a relevant FERPA exception, institutions of higher education must consider how to protect to the greatest extent possible student health, safety and privacy interests in order to encourage students to access campus medical services.
  • Institutions must apply the FERPA privacy lens to the obligation to maintain and produce documents potentially relevant to litigation.

The Family Policy Compliance Office at the U.S. Department of Education (the Department) recently released "significant guidance" on the application of the Family Educational Rights and Privacy Act (FERPA) to the release of student medical records generally, and specifically in the context of litigation. The guidance comes in the form of a Dear Colleague Letter addressed to the higher education community. The Department issued a draft version last year and solicited public comment. While Dear Colleague Letters are not law, they are strong indications of how the government will enforce the laws within its purview.

This alert summarizes the Dear Colleague Letter and provides practical guidance for institutions and their counsel in connection with the release of student medical records.

FERPA and Medical Records

FERPA is a federal law that protects student privacy by requiring an institution to obtain consent before releasing information in an "education record," absent an applicable exception that permits disclosure without consent. Education records are broadly defined as records that are 1) directly related to a student and 2) maintained by an educational agency or institution or by a party acting for the agency or institution.

The Dear Colleague Letter clarifies that student medical records must generally be viewed as education records, except when the record fits into a "narrow" exception that excludes "treatment records" from the FERPA-protected education record. Treatment records are records directly related to a student 18 years of age or older, made or maintained by a medical professional, and made, maintained or used only in connection with the student's treatment. A treatment record cannot be disclosed to anyone (including the student) other than the professionals providing treatment, except that it can be personally reviewed by another medical professional of the student's choice. Once the treatment record is disclosed for any other purpose, it becomes part of the FERPA-protected education record.

Institutions Should Encourage Student Access to Campus Medical Services

The Dear Colleague Letter recognizes that campus medical services serve an important purpose in helping to promote campus safety and health, improve academic achievement and assist students who experience violence and harassment. The Department concludes that students have a reasonable expectation that their conversations with campus medical professionals are confidential and also that institutions must avoid any chilling effect on student access to campus medical services that would occur if students fear that their medical records will be shared inappropriately. Thus, throughout the Dear Colleague Letter, the Department urges institutions to be mindful of the private nature of medical records and to take reasonable measures to limit disclosure.

Clarifying the Scope of FERPA Exceptions that Permit Disclosure of Student Medical Records Without Consent

The Department cautions that while institutions may choose to disclose FERPA-protected medical records pursuant to applicable exceptions, "great weight" must be given to student expectation that such 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."

The Dear Colleague Letter addresses the scope of several FERPA exceptions:

Disclosure to School Officials with a Legitimate Education Interest

Medical records may be disclosed, without prior consent, to school officials whom the institution has determined have a legitimate education interest in the records. The Dear Colleague Letter affirms past guidance that institutions have "significant discretion" to determine who is a school official and that a school official may have a legitimate educational interest if the official needs to review the record to fulfill his or her work functions. This exception does not confer a blanket right to review all documents in an education record. Institutions must look to an individual's job functions to determine whether there is a legitimate interest in a particular record.

Importantly, the Dear Colleague Letter does not limit the extent to which student medical records may be shared with members of a threat assessment team. The Department encourages institutions to implement a threat assessment program, which typically relies on a team composed of a variety of school officials to assess whether a health or safety emergency exists. Preventing and responding to campus violence requires the sharing of relevant student information to make threat assessments effective.

Disclosure in a Health and Safety Emergency

An institution may disclose medical records to appropriate authorities if a student is determined to pose an "articulable and significant threat to self or the health or safety of other individuals." This exception permits disclosure not only to school officials but to any person whose knowledge of information from the records will assist in protecting the student or others from the threat, such as law enforcement, medical personnel, attorneys representing the institution and parents. The scope of disclosure should be limited to only the information necessary to protect the health or safety of the student or other individuals.

The Department advises that providing "actual records, such as a counselor's session notes," is generally not necessary. Rather, "a counselor's summative statement" of the relevant and necessary information from medical records will generally suffice "in most cases."

Disclosure in Litigation

Institutions may disclose to a court those records that are relevant for the institution to proceed with a legal action against a student or defend against a legal action brought by a student. However, when medical records or counseling records are involved, this exception must be understood in the context of the "special sensitivity" of the records and the importance of avoiding chilling effects on student access to timely on-campus medical treatment. To address these concerns, the Department adopts a standard similar to the HIPAA Privacy Rule pertaining to litigation between a covered healthcare provider and a patient: The litigation exception to disclose student medical records should be used only if the lawsuit relates directly to the medical treatment or payment for the treatment. The Department further advises that when disclosing medical records, institutions must limit disclosure without consent "to only those records that are, in fact relevant and necessary to the litigation" (emphasis added). In other situations, medical records may be disclosed only with consent or when subject to an appropriate protective order signed by the court.

Disclosure of Medical Records to Attorneys to Prepare a Case

The Dear Colleague Letter offers guidance about the scope of disclosure of medical records to attorneys representing an institution in legal proceedings. Generally, such attorneys function as school officials to whom disclosure of records may be made pursuant to the school official exception. However, the Department advises that medical records should generally not be disclosed to attorneys for the purpose of helping to prepare a case without a court order or the student's written consent, unless the litigation "relates directly to the medical treatment itself or the payment for the treatment." This guidance strongly protects student expectation of privacy in medical records by strictly limiting an attorney's use of campus medical records to prepare a case, unless there is a signed protective order or prior written consent.

Legal Holds

The Dear Colleague Letter clarifies that it does not override the legal requirement for institutions to preserve documents relevant to anticipated or actual legal proceedings ("legal holds" or "litigation holds"). To comply with document preservation obligations, institutions should generally instruct a treatment provider to preserve medical records, but the institution may electronically capture or take physical custody of the records when deemed necessary to comply with legal obligations.

Practical Considerations

Institutions should consider the following measures to respond to the Dear Colleague Letter:

  • Review campus medical treatment policies. Campus treatment policies should clearly notify students of the institution's information-sharing practices with regard to medical records. The Department considers it best practice to notify students of the privacy of their medical records at the time they receive treatment.
  • Establish information-sharing protocols. Evaluate how the institution shares information under the school officials exception and establish protocols to limit an official's access to only those records necessary to perform job functions. Review or adopt protocols that address how information is shared in a health or safety emergency, including a process for treatment providers to draft a summary of relevant information in a medical record rather than providing copies of the records themselves.
  • Train school officials. Provide training on the Department's guidance with regard to access to medical records and the institution's information-sharing protocols.
  • Update litigation hold practices. Evaluate the institution's practice with regard to gathering information in response to pending or threatened litigation. When possible, preserve medical records without disclosing their content unless the litigation relates directly to treatment or involves payment.
  • Comply with state law governing privacy of medical records. The Department's guidance does not preempt state laws that may provide additional privacy protection for medical records.

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.