University of Minnesota governance committees are considering a resolution that would request that the school keep student counseling and medical records private.
Members of the University Senate’s Equity, Access and Diversity (EAD) Committee passed the resolution in January.
They started work on the proposal in 2015 after the University of Oregon accessed a student’s counseling records in connection with a lawsuit she filed against the school, sparking a national conversation about the confidentiality of student records.
“We fear that if a student thinks that their records might be used against them … that might dissuade someone or discourage someone from seeking counseling,” said committee chair Jeremy Jenkins.
Additionally, many alumni work for the University after graduation, meaning their records could be accessed by the administration even when they are no longer students, Jenkins said.
“The University [isn’t] going to jump at the chance to rifle through people’s records, but we think this is consistent with President Kaler’s commitment to mental health,” Jenkins said.
The resolution requests the University administration promise not to access student counseling or medical records except in the cases of a court order, written consent from the student or lawsuits directly related to the treatment or payment for those services.
Campus counseling and medical records fall under the federal Family Educational Rights and Privacy Act, the resolution says.
The resolution states that FERPA allows universities to access a student’s counseling and medical records, which is a common misconception, said Steven McDonald, general counsel for the Rhode Island School of Design and FERPA expert.
“This is a fundamental disconnect … It would be more accurate to say FERPA doesn’t prohibit the sharing of records,” McDonald said, adding that most states have more restrictive privacy laws governing privacy of records that would overrule FERPA, he said.
McDonald said the Oregon case had been widely misunderstood.
In most states, if a plaintiff alleges mental distress — as did the University of Oregon student — he or she waives the confidentiality privilege of records that could disprove distress, he said.
Katie Eichele, Aurora Center director, consulted with EAD when they were working on the resolution. She said records held by the center are covered by FERPA and a number of other state laws.
When a client comes to the Aurora Center for counseling, they sign a client-advocate confidentiality agreement to ensure they understand privacy rights and limitations, Eichele said.
In the case of a lawsuit, the Aurora Center would only permit access to therapy records if they are subpoenaed or if the client sues the Aurora Center directly, she said.
University Student Counseling Services (SCS) Director Glenn Hirsch also talked with EAD members.
He said in the ten years he has held his position, the University has never requested access to records without student consent. He hasn’t heard concerns from students about this issue, but there is the potential for a chilling effect, he said.
If the University were to request a student’s records, SCS would first inform the client and discuss whether he or she would be comfortable signing a release form, he said.
“If the student were not comfortable with it, then I think we would have to take that on a case-by-case basis and discuss what we would be obligated to do,” he said.
SCS follows federal and state laws governing confidentiality of records as well as University policy and ethical guidelines, Hirsch said.
Sometimes there are conflicts between the various levels of regulation that make it hard to predict how these hypothetical situations would play out, he said.
“There can be a regulation at one level that says yes, it is okay to release this record, but for example at the state level there may be a law against that, or a law may say you can do it, but ethical principles say that you can’t,” he said. “We have a number of different things that guide us.”
Typically, SCS only releases records without student consent if there is a court order, which is typical for mental health professionals, Hirsch said.
Several other committees, including the Disability Issues Committee, have passed the resolution, and it is scheduled for discussion at the University Senate meeting in April, Jenkins said.
