law for behavioral intervention teams w. scott lewis, jd partner, ncherm & assoc. general...

LAW FOR BEHAVIORAL INTERVENTION TEAMS

W. Scott Lewis, JD Partner, NCHERM & Assoc. General Counsel, Saint Mary’s College

Daniel Swinton, JD, EdD Assistant Dean of Students, Director of Student Conduct & Academic Integrity

© 2010 NCHERM

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Different legal constructs – common law versus statutory law – can be confusing and seem at times contradictory. These most often apply to BIT.

NEGLIGENCE/TORT/LIABILITY

FERPA/HIPAA/PRIVILEGE

CLERY/SECTION 504/ADA2

• Elements of Negligence• Duty• Breach• Cause• Injury


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ImmunityChanging Relationships

Changing Duties


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CONFIDENTIALITY FOR BIT

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HIPAA, FERPA and PRIVILEGE

This training is not intended as a comprehensive review of HIPAA/FERPA. Is it non-technical, non-legalistic, and just focuses on how FERPA impacts on BITs

What is an Educational Record?

Internal Communication

External Communication6

Does your counseling service or health service transmit electronic data about patients, such as health insurance or billing information?

OR Does your counseling or health service

treat students other community members and/or employees as well as students?

Dispensing with HIPAA

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• FERPA starts with the simple concept that it applies only to student education records

• An educational record is anything that personally identifies a student that is kept in a written or recorded medium by college officials– Also includes anything that could easily lead to the

personal identification of a student


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– One of the most important understandings to have about FERPA is that what a college official sees, hears, experiences or personally observes is not governed by FERPA – AT ALL – unless it is drawn from a written or recorded record or it is subsequently memorialized in a written or recorded form• At which point, only release of information from the

written or recorded version is governed by FERPA• What the official saw, heard or observed can still be shared

with anyone the official wants. It is not part of an educational record


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Example:– Standing outside the library, you see a female student

(Jane), hit a male student (Jack)• Who can you tell about what you just witnessed?

– Anyone. The press, police, the BIT. There are no limits under FERPA

– If you write up a report of the incident, what then?» The report is an educational record under FERPA» Release from that document must meet FERPA requirements» You can still share what you witnessed without limitation


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Exceptions --– FERPA explicitly excludes certain written or recorded

records from the definition of an educational record– Such records are therefore outside of the FERPA

privacy requirements– For BIT purposes, four exclusions are pertinent:• Sole possession records• Health records• Counseling records• Law enforcement records


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Exceptions – Sole Possession Records– Those written or recorded records about a student

that a college official keeps and maintains for their own private recollection, in their own handwriting or on a computer whose access is not shared

– As long as these records are never shared with anyone but their creator, they are exempt from FERPA

– Once they are shared with anyone else, they are subject to FERPA


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Exceptions – Sole Possession Records– The notes you take at a BIT meeting can be sole

possession records if you do not share them, and you did not draw on educational records to create them

– Otherwise, the notes and records created by the BIT at its meetings and in case management will be subject to FERPA and will be considered part of a student’s educational record

– The student is entitled to see them, and release to third parties is governed by FERPA


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Exceptions – Health Records & Counseling Records– Written records and recorded media that personally

identify a student but relate to that student’s status as a client of a counseling center or patient of a health center are exempt from the definition of an educational record when they are kept and maintained by the counseling or health service for a counseling or health care purpose, and not shared outside of those services


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Exceptions – Health Records & Counseling Records– FERPA does not govern the privacy of those records,

but state laws and professional ethical rules do• HIPAA may govern as well, but rarely applies to campus

counseling and health services

– When personally identifiable information about a student is released by a health service or counseling service to campus officials, including the BIT, that given copy of the record becomes subject to FERPA


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Exceptions – Campus Law Enforcement Records– Records that personally identify a student that are

kept and maintained by a campus law enforcement unit for a law enforcement purpose, and are not shared with other departments, are exempted from FERPA

– If campus police stop a student for a conduct code violation, the records created are subject to FERPA, because code enforcement is not a law enforcement purpose.


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Exceptions – Campus Law Enforcement Records– If campus police share records with a Dean of

Students or a BIT, the copy that is shared becomes subject to FERPA

– Records shared by the Dean or BIT with campus law enforcement are subject to FERPA if they were part of a student’s educational record when maintained by the Dean or BIT


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– So now we should know, for BIT purposes at least, what is and what is not part of a student’s educational record, and therefore whether FERPA applies.

– Test yourself. The BIT uses a database to track student case management. Students are named, or identifiers are used. All team members have access to the database. Does FERPA govern those entries?

– Yes.


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– It makes sense to divide release of information under FERPA into internal and external release discussions, because different rules apply.

– First, keep in mind that the student owns their records, and has a right to see them upon request

– So, internal sharing with the record owner is guaranteed by the FERPA statute

– The simplest way to release any information internally or externally from a student’s education record is…

Internal Release

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– The simplest way to release any information internally or externally from a student’s education record is with the explicit written permission of the record owner, the student

– Note what is to be shared, with whom, and for what purpose

– A record of the release should (not required by FERPA) be kept with the record itself in the office from which the record was released

Internal Release

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– Luckily, release internally under FERPA is quite straightforward

– College officials may release information from a student’s educational record internally to any other college official who has a legitimate educational interest in the information contained in the record

– No student consent or notice is needed, no documentation is required

Internal Release

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– What is legitimate?– That is not defined by the regulations, but instead

left to the discretion of the releasing official– Fortunately, the Family Policy Compliance Office

(FPCO), which enforces FERPA, is deferential to campus officials’ determination of what is legitimate, and they are unlikely to second guess a decision to share records internally

Internal Release

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– What is legitimate?– A coach asks the campus conduct officer the

outcome of a hearing involving one of her athletes• Is that legitimate? Sure• But, if the same coach wants to know about the

outcomes from non-athletes, that is unlikely to be legitimate

– A professor wants to know the outcome of a complaint he brought alleging academic misconduct against a student• Is that legitimate? Of course

Internal Release

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– What is legitimate?– A campus counselor wants information on a client-

student from the BIT• Is that legitimate? Probably

– The BIT wants information from a campus counselor on her client-student• Is that legitimate? Trick question. The records are not

governed by FERPA if they were made in the context of a therapeutic course of treatment. Thus, the counselor can only release if professional ethics and/or federal/state law permit it

Internal Release

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No Duty - “Can Warn”Some Duty - “May Warn”Must Warn – “Tarasoff”

Ways to say something without saying something…

A Little More on Privilege

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• External release of information from a student’s educational record to third-parties under FERPA is much more complex than internal release

External Release

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– There are several applicable provisions, in order from broadest to narrowest:• Emergency Health & Safety• Permission of the student• Dependency• Conduct Outcomes

– Sexual assault/harassment– Crime of Violence

» Guilty» Not-guilty

• Alcohol/Drug Violation• Subpoena

External Release

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– Emergency Health and Safety Exception• When there is a credible threat to the health and/or

safety of a student, or the campus, or any member of the campus community, FERPA authorizes college officials to release whatever they need to from any educational records, to anyone necessary, to avert the threat• Prior to Virginia Tech, this provision was construed

narrowly, but subsequent changes to FERPA have relaxed this stance. The FPCO will now be hands-off, showing deference to college officials’ determination of what is an emergency and what needs to be released to whom

External Release

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– Permission of the student is still a simple way to release information, as long as there is a signed consent that is specific as to what is to be released and to whom

– Dependency• When a student is a dependent, most information from

that student’s educational record MAY be shared with the claiming parent(s) without consent of the student• Dependency (which may persist up to age 24) is

determined by tax records, financial aid records, and/or by a verification by the student of dependency status

External Release

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– Dependency• A student can be claimed by only one parent, or by

both if filing jointly• If the parent of a dependent student should call

seeking information about the student’s conduct record, BIT status or grades, institutional officials may share that information with the parents upon verification of dependency– Parents can fax a copy of their tax records– You can check your registrar’s or financial aid records

• Recent relaxation of FERPA regulations also allows us to ask students at registration to indicate if they are dependents, and if so, for us to release accordingly

External Release

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– Conduct Outcomes• Under amendments made in 1992 and 1998, FERPA has

exceptions for the release of conduct outcomes• Under amendments made pursuant to the Clery Act by

the Campus Sexual Assault Victim’s Bill of Rights, colleges are required to provide to victims/complainants the outcomes and sanctions of complaints they bring of sexual assault or sexual harassment– No conditions may be placed on a victim’s right to this

information. It is absolute– Notification should be made in writing, though law does not

require it

External Release

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– Conduct Outcomes• Redisclosure restrictions

– In a sexual assault hearing in which the accused student is found not to have violated the code of conduct, FERPA places redisclosure restrictions on a victim’s ability to share that information

– Colleges do not enforce redisclosure violations. That is the responsibility of FPCO

– In a sexual assault hearing in which the accused student is found in violation of the code of conduct, the victim may release that information publicly and without limitation» There are no redisclosure restrictions

External Release

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– Conduct Outcomes -- Crimes of Violence• Another set of exceptions governs release of conduct

hearing outcomes for the code equivalents of sixteen statutorily defined crimes of violence– Not all of which are actually violent

• If a student is found in violation for an offense equivalent to one of these sixteen crimes, the college MAY release publicly:– The name of the student accused– The alleged violation(s)– The finding(s)– The sanction(s)

• There are no redisclosure restrictions

External Release

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– Conduct Outcomes -- Crimes of Violence• Where a student is found to not be in violation, recent

changes to FERPA now require the college to release the outcome to the victim/complainant• No public release is permitted• Redisclosure restrictions apply

External Release

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– Alcohol/Drug Violations• Colleges may, under 1998 amendments, make parental

notification under FERPA for alcohol or drug violations by a student• The student must be under the age of 21 at the time of

the notification to the parent or guardian

– Subpoena• Finally, colleges can make lawful release from a

student’s educational record pursuant to a lawfully issued subpoena– Colleges must notify the student of their intent to satisfy the

subpoena so that the student can attempt to quash it

External Release

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• There are no FERPA police• Since FERPA was enacted, no college or

university has ever been fined for violating FERPA

• You cannot be sued for violating a student’s FERPA rights

• The FPCO is helpful and not adversarial to colleges

FERPA in Context

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• FPCO will provide guidance if we screw up, and require changes in our practices to prevent future mistakes

• The Bottom Line – if your choice is between protecting your community and worrying that you might violate FERPA, protect your community and worry about the FERPA consequences later.

FERPA in Context

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OTHER LEGISLATION

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CLERY ACT, SECTION 504 & THE ADA

OTHER LEGISLATION

ADA

SECTION 504

THE CLERY ACT39

• The ADA is designed to “level the playing field” through reasonable accommodations AFTER one has been admitted to a program.

• It requires that a student be:– Otherwise qualified– Registered and confirmed as having the disability

• This may impact any requirements a BIT places on a student

THE ADA

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• This law gives legal recourse to individuals who are discriminated against on the basis of their disability

• This will most likely come into play when dismissing a student from the institution– Using the Code of Conduct– Using BIT– Involuntary Withdrawal Policies

Section 504

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• Use the standard law enforcement criteria for warning:– Can we identify the nature of the threat?– Can we identify the source of the threat?– Can we give those being warned specific

information about steps they can take to protect themselves from the threat posed?

NOTE: This may be the responsibility of the CIRT as opposed to the BIT, but the capability needs to exist.

Clery Act Timely Warnings

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QUESTIONS?

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law for behavioral intervention teams w. scott lewis, jd partner, ncherm & assoc. general...

Documents

recorded records

ferpa requirements

ferpa release

privilege slide

ferpa impacts

ferpa privacy requirements

educational record

student education