There is really a lot of misunderstanding and confusion about confidentiality. First, FERPA has limited applicability to clinical personnel. Clinical treatment records are specifically excluded from FERPA. Instead, clinicians are subject to strict standards under licensing and ethical codes and state law. Those laws allow mental health providers to disclose confidential information without the patient’s consent only in very limited situations. Generally speaking, most state statutes allow such disclosure as part of a duty to protect or warn intended victims of harm, when the treatment provider believes there is a substantial and imminent risk and that his or her failure to disclose information will result in serious physical harm to others. In those circumstances, a mental health provider may disclose confidential information on an emergency basis to law enforcement officers and emergency medical personnel. These statutes often do not allow treatment providers to disclose information to a parent or other relative or to individuals such as a school dean or administrator unless they are individuals who can prevent a specific threat of violence.
Second, FERPA’s protections primarily apply to records available to non-clinical/ administrative/ faculty personnel. FERPA prohibits disclosure of educational records and information contained in those records without consent. FERPA has several enumerated exceptions which allow— but do not require– disclosure of student information without consent to specific categories of individuals. These exceptions include sharing information to parents of students who have been declared dependant for federal tax purposes, and health and safety emergencies. Most schools use a form from the US Depart. of Ed., completed at the beginning of the year, to track whether students are dependent. Before an allowed FERPA disclosure is made, school personnel must also consider if the disclosure will violate state mental health privacy laws. State laws prohibit re-disclosure of confidential information except to the extent that re-disclosure is consistent with the initial purpose for which disclosure was authorized. Therefore, if school personnel receive confidential mental health information from clinical providers in an emergency situation, they must take precautions to safeguard the information except as necessary to respond to the emergency. A school must comply with the state or federal law with strictest requirements.
Confidentiality is critical. Without it, most people would not seek treatment. Relaxing confidentiality laws is likely to discourage students from seeking treatment. Since it is always preferable to obtain consent to a voluntary disclosure of confidential information, we should advocate to ensure that schools have enough resources available to take the time and work with students to encourage voluntary disclosure to parents.
This post is offered only for general information and educational purposes. It is not offered as legal advice and should not be relied upon in lieu of consultation with appropriate legal advisors in your own jurisdiction.
The Law Office of Karen Bower 