School Reopenings & Student Privacy

The Pressure to Reopen Amidst Pandemic

Parents and educators are alarmed about the pressure to reopen schools during what appears to be the height of an uncontrolled pandemic. Sure, parents do want their children in school, and even the students are so bored from the shutdown and lack of social activity that they too, want to return. We have to question, though, if our society is ready for such an action, and how it can be handled.

Safety should be an all-time priority not only for the students and teachers but for the community as a whole. If children are to attend classes, the coronavirus’s ability to spread through the schools can get quickly out of hand. It would also be taken back to their homes, to their parents and grandparents. The opening of schools would create a storm of spread that will likely kill thousands of children and adults.

According to Secretary of Education Betsy Devos, “there is no danger in any way” if children return to school for full-time learning. She has been fact-checked by many professionals and epidemiologists who say that what she is insisting on is quite dangerous. That the current rate of infection is unknown among children, but the death rate could be as high as 5.9%. This number could lead to tens of thousands of children dying due to a push for school openings before society has a handle on the disease. Many parents are simply saying, they will not put their children at risk or their family’s lives on the line for in-person education.

CDC Recommendations

So, to remove the politics from the situation, what does the CDC recommend, and is it even plausible? First off, the CDC has recommended avoiding the federal government’s advice altogether. They suggest that schools should only work together with “their state and local health officials” to make any decisions regarding opening schools for in-class sessions.

The CDC realizes that each community has its own unique needs. “Implementation should be guided by what is feasible, practical, acceptable, and tailored to the needs of each community.” Their language suggests that following the current Department of Education’s insistence that “all schools be prepared to be open by fall,” is indeed too much to ask.

The suggestions also include the schools’ health care facilities as the first responders to children’s health care needs while they are in the care of the school. This care would most of the time be a school nurse. For schools to open safely, school-based health facilities should follow the recommendations provided by the CDC’s two separate health advisories. These include Guidance for U.S. Healthcare Facilities, and Ten Ways Healthcare Systems Can Operate.

These guidance programs for the health systems within schools can be extensive and costly. There has been no mention from the federal government on how it will be paid for. Schools are left on their own when their funding is thinly spread as it is. The CDC also has an overall recommended program for the school to follow regarding steps to prepare for opening, masks, and social distancing. They suggest that school administrators follow the guidelines offered in their step by step health brochure CDC’s K-12 Schools Readiness and Planning Tool.

Safety, HIPAA, and FERPA

Safety should be the primary concern for everyone, the students, the educators, families, and the resulting spread throughout the community. Many families feel that they do not want to participate in going back to schools until the pandemic has been resolved. They do not wish to have their children used as guinea pigs for a social, medical experiment with the cost of being so many lives at stake.

Other matters that have barely been addressed by schools and the Federal Department of Education is student privacy as it relates to both FERPA and HIPAA. FERPA is the Federal Educational Rights and Privacy Act, a federal law designed to protect the privacy rights of student educational records. Any school or school system that receives funding from the federal government must abide by the law. HIPAA is the Health Insurance Portability Accountability Act, which are laws that protect patient privacy of their medical information. These are two separate legislations, which under the current coronavirus pandemic, hold exceptions to the rule.

Privacy Rights Under Exception During a Pandemic

As we are all aware, privacy rights have been hotly debated in the last couple of decades. Globally, citizens are raising their voices in concern that they often feel as if they and their lives are under a microscope, and too much information is being collected about them. In the United States, the issue is also a big concern, from health and safety to students, to consumer protections and more, American citizens are demanding more protections to their right to privacy. However, citizens who have not recently reflected upon the U.S. Constitution may be unaware that no right exists. The Constitution does not have a guarantee to the right to privacy. We are left to police ourselves.

This concept was thought to be settled, at least regarding health information, when Congress enacted the HIPAA act. HIPAA was designed to help allow for congruent medical records to be transferred from facility to facility to meet the patient’s needs but, at the same time, protect the patient’s privacy. This legislation was necessary for many reasons as health records could create a situation in which discrimination for a job, or even a residence, could be an issue.

Here we are in 2020, with a global pandemic terrorizing the globe and taking the lives of thousands of people. What has changed? HIPAA had already had provisions built-in for this type of exception. Since the beginning of the viral epidemic, Congress has used this exception to meet public safety needs over the privacy of the individual.

When Congress passed the CARES Act, it suspended HIPAA regulations for the country. Whether or not they had this authority is still under review, but this is the current case for all Americans. The CARES Act or Coronavirus Aid, Relief, and Economic Securities Act allowed Congress to create a paper trail of an individual’s health status. This ‘trail’ for all intents and purposes will follow that person for the rest of their lives. The public fear and sentiment towards coronavirus have created the environment that HIPAA rules were built to eliminate. The free transfer of an individual’s health information.

How Privacy Changes Impact FERPA & Student Privacy

Generally speaking, FERPA is designed to protect the privacy of a student‘s educational record. Schools had become accustomed to knowing how to handle specific situations. These could include parental requests for information, getting permission from both parents and students before posting their likeness, and many other regulations concerning the public release of their personally identifiable information.

Coronavirus is changing the way schools operate, and there is a significant change in the learning environment – most children are learning through online platforms. How do these changes impact schools and students? Schools and students are both working hard to keep up with unprecedented changes happening at lightning speed. Classrooms that once met in person have been transferred to online zoom courses and other electronic learning measures.

Depending on the way a class is set up, the course may or may not be subject to FERPA regulations. If the class is recorded and it only shows the teacher or lecturer giving the course information then, no, it is not subject to the rules. However, if there are recordings of students participating, communicating, or even giving demonstrations, then yes, that information faces FERPA policies and heavy redaction from school administrators or other resources.

Schools can remain compliant with FERPA and continue to use the recordings of students within the context of the classroom environment on several grounds. The first one is obtaining the students’ written permission and parents to use the records for educational purposes. However, there are no limits if the recording is used only with other students in the classroom, and there is no other outside access.

Due to the increasing need for redaction in the school systems, many school administrations opt to use outside providers, such as CaseGuard, to handle their redaction needs. This sharing of information to the external provider is considered FERPA compliance. Other technology platform vendors may also be used to distribute the course information to students, and these vendors are also covered to gain access to student information. These vendors are generally under separate privacy agreements with the districts.

As to medical information, where it would seem that FERPA and HIPAA likely overlap, public safety overrides student privacy. There is a health and safety exception for FERPA to make available necessary personal student data in times of emergency. “During this period of disruption and change, institutions also may determine that they need to disclose personally-identifying information from a student’s education record to manage an emergency effectively. FERPA does permit such disclosure without written consent if it is indeed in connection with a health or safety emergency. 34 CFR § 99.31(a)(10).”

In light of the global pandemic, the wording of exceptions for public safety comes first for FERPA and HIPAA. Now, this information is not for public consumption. It should only go to appropriate parties needed to help public safety; in this instance, it may be the local health departments to set up contact tracing efforts to help stop the spread of the virus. The release of information is still limited to those necessary to assist in the resolution of public safety.

The Department of Education does suggest that whenever possible, the information is provided in such a manner that it does not disclose any personal identifying information of the student. Schools must also maintain a separate set of records for each instance of release and the reasons for the release of information for future investigation. Indeed, privacy during times of public distress and safety can be challenging. For future situations, it may be a topic to address in a more specific manner to help protect the privacy of all American citizens.