by Theo Schall

 

 

A case pending before the U.S. District Court in Eugene, Oregon is raising questions about the privacy of student medical records at university health clinics. As part of its defense against the Title IX suit, the University of Oregon accessed the mental health records of a student who was allegedly raped by members of the basketball team.

 

Physician-patient confidentiality is fundamental to our medical system, but the laws that govern patient privacy are different in university and college medical centers. Students who are treated at university hospitals are protected like any other hospital patients, and their records are subject to the Health Insurance Portability and Accountability Act (or “HIPAA”). But the HIPAA privacy rule doesn’t apply to “education records” or “treatment records” at student health clinics. Under the Family Educational Rights and Privacy Act (or “FERPA”), schools that run health clinics have the legal right to access student medical records to use them for legal defense.

 

If medical providers work for other institutions or in private practice, universities can still gain access to patient records to defend themselves. However, the process is different and provides patients with an additional layer of protection. Universities cannot just access records without permission. Schools may subpoena medical records during the pre-trial discovery phase, but before they’re handed over, patients can ask the court to sort through those records to decide what should and shouldn’t be shared with the school.

 

Anti-rape advocates are understandably frustrated. Victims may be less willing to seek physical and emotional help if they have reason to believe that their own records may be used against them in court. Students may not be able to find affordable or accessible healthcare off-campus due to cost or distance – this is, after all, the very reason that schools have their own health clinics. Kelsey Jones, a University of Oregon student who works with the student-run Organization Against Sexual Assault, was quoted in Kaiser Health News as saying, “It’s very concerning for a lot of people. It’s ten times harder now to seek that help and feel safe and feel OK to share 100 percent of what you’re feeling.”

 

This case is a good example of the difference between what is legal and what is ethical. The law requires a minimum of a university. Ethical behavior often requires more. While the University of Oregon may have acted within its legal rights in this case, accessing patient records without permission may not pass more rigorous ethical scrutiny.

 

Denise Horn, a U.S. Department of Education representative, issued a statement in response to the controversy around this case. “The Department of Education urges higher education institutions to not only comply with FERPA, but also to respect the expectation of confidentiality that all Americans hold when talking to a counselor or therapist.”

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