Comprehensive+Literature+Review


 * __LITERATURE REVIEW__**

Susan Dickey, RN, C, PhD, in a 2002 article published in the Journal of School Nursing, advises readers that the Family Educational Rights and Privacy Act of 1974 (hereafter referred to as FERPA) “protects the privacy of students and their parents by restricting access to school records” and is the key legal standard for school nurses and other personnel” to follow. (Dickey at p. 183). She additional advises overriding the federal regulations imposed by the Health Insurance Portability and Accountability Act (1996) (hereafter referred to as HIPAA), stating that its final version “specifically excluded schools from the requirements of HIPAA.” (Dickey at p. 183). In November 2008, the U.S. Department of Education and the U.S. Department of Health and Human Services issued a document titled “Joint Guidance on the application of the //Family Education Rights and Privacy Act (//FERPA) And the //Health Insurance Portability and Accountability Act of 1996 (HIPAA)// To Student Health Records” in order to clarify the requirements of HIPAA upon schools. Provided therein is a statement that “(w)hen a school provides health care to students in the normal course of business, such as through its health clinic, it is also [considered] a ‘health care provider’ as defined by HIPAA.” (U.S. Department of Education, Joint Guidance, at p. 3). This document was circulated on the website of the National School Boards Association following the Virginia Tech school shootings in April 2007. While “treatment records” of students are excluded from HIPAA coverage, as are “education records,” compliance could still be mandated if the school provides health care as above. The basic premise of disclosure of medical information is based in HIPAA and FERPA, which both state that parents of minor students are entitled to have their written authorization obtained before releasing any treatment records and educational records to third parties. The American Academy of Pediatrics, through its Committee on Bioethics, felt the need to restate its position on informed consent, stating that “(t)he doctrine of informed consent reminds us to respect persons by fully and accurately providing information relevant to exercising their decision-making rights.” (Committee at p. 314). “A re-analysis of informed consent leads to the identification of important limitations and problems in its application. … Two additional concepts are needed: parental permission and patient assent. The American Academy of Pediatrics believes that in most cases, physicians have an ethical (and legal) obligation to obtain parental permission to undertake recommended medical interventions.” (Committee, at p. 317). It is important to recognize that the patient’s permission to undertake medical treatment is no less important than the patient’s right to allow dissemination of the medical records that detail such treatment. The Committee on Professional Standards, under direction of the Board of Professional Affairs, is the governance committee charged by the American Psychological Association to evaluate and monitor its standards and its members’ compliance therewith. In July 1988, the review of a case was published in the association’s casebook as Case 1. The children of a separated, but still married, couple had been taken by one parent to a family therapist for evaluations. That psychologist “recognized the illegality of doing psychological evaluations on minor children without the knowledge and permission of their //custodial// parent.” (emphasis added) (Casebook at p. 558). The Committee on Professional Standards felt that “(w)ithout a specific request from the court or a written agreement from both parents’ attorneys, the psychologist in this case overstepped bounds by making specific recommendations in favor of one parent over the other.” (Casebook at p. 558). The committee further stated that “(t)he civil rights of people involved in a custody dispute must be protected.” (Casebook at p. 559). Later, in its June 1989 Casebook publication, a correction was issued to the above Case regarding the statement “The psychologist recognized the illegality of doing psychological evaluations on minor children without the knowledge and permission of their custodial parent.” The Committee on Professional Standards stated that, “(u)pon review, it appears that this statement was overbroad. … The legality of evaluating minor children on behalf of non-custodial parents whose parental rights have not been terminated varies from state to state.” (Casebook Erratum at p. 965). Advice is given to thoroughly research state law and regulations prior to embarking upon an evaluation at the behest of a non-custodial parent. The important issue delineated in this case and its correction is that “custodial” does not mean that neither parent has rights to control the child. Until such time as a parent’s rights have been terminated, both parents of a child have rights of control and must be respected.

**__REFERENCES__** APA Board of Professional Affairs, Committee on Professional Standards (1988) // Casebook for Providers of Psychological Services [Case 1] //, __ American Psychologist __ , Vol. 43(7), Jul 1988, pp. 557-563. []. (doi: [|10.1037/0003-066X.43.7.557] ).

APA Board of Professional Affairs, Committee on Professional Standards (1989 // ) Casebook for Providers of Psychological Services: Erratum //, __ American Psychologist __ , Vol. 44(6), Jun 1989, pp. 965, [], (doi: 10.1037/0003-006X.44.6.965).

Committee on Bioethics, American Academy of Pediatrics (1995, reaffirmed 2006) // Informed Consent, Parental Permission, and Assent in Pediatric Practice //, __ Pediatrics __ , Vol. 95(2), Feb 1995, pp. 314-317, Reaffirmed Oct 2006. ([]). Reaffirmed, // Pediatrics // 2007;119;405 (doi: 10.1542/peds.2006-3222).

Dickey, S.B., Kiefner, J., and Beidler, S.M. (Jun 2002) // Consent and Confidentiality Issues Among School-Age Children and Adolescents //, __ The Journal of School Nursing __ , Vol. 18(3), pp. 179186. ([]) (doi: 10.1177/10598405020180031001).

National School Boards Association, // Feds Issue HIPAA and FERPA FAQs on student records // , ([]).

U.S. Department of Education, // Joint Guidance on the Application of Family Education Rights and Privacy Act ( // FERPA) And the // Health Insurance Portability and Accountability Act of 1996 (HIPAA) // // To Student Health Records // (Nov 2008), ([|www.2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf]).

__ Code of Federal Regulations __

34 CFR § 99.33 Family Educational Rights and Privacy Act of 1974 (FERPA), [].

45 CFR § 164.502 Health Insurance Portability and Accountability Act (HIPAA) (1996), [].

Video 1: ** Summary of Literature Review ** Video by Charla Bynum

media type="youtube" key="J6EdtVlzxqQ" height="315" width="420" align="center" ACA Decision Making Model