The University of Oregon is being sued by a student who claims that after she was raped by three basketball players, the school tailored and delayed their discipline so the men could play in the NCAA tournament. Those allegations alone sound horrible (Oregon denies them), but they've taken a disturbing twist: the university gave to its lawyers the student's counseling records from when she sought help on campus.
This sounds like a giant violation of all sorts of laws, chiefly HIPAA, that are supposed to keep medical records private, right? Nope, says Oregon.
The university argues in legal filings that multiple laws give it the right to access these records and turn them over to counsel. Among the law it cites is another acronym, FERPA, which covers education records. This sounds insane—counseling records governed by the same laws as a student transcript—and yet Katie Rose Guest Pryal, a former Chapel Hill law professor, writes in the Chronicle of Higher Education that the university might be right.
Pryal writes that records from campus health clinics fall under "education records or treatment records," according to broad FERPA guidelines. Here's how Pryal explains it (emphasis added is mine):
Now, you may know that Ferpa applies to most colleges and universities. What you might not know is that, as the FAQ states, Ferpa therefore applies to "the records on students at the campus health clinics of such institutions. These records will be either education records or treatment records under Ferpa, both of which are excluded from coverage under the Hipaa Privacy Rule." In plain English, college medical records simply do not count as real medical records, at least for privacy purposes.
Although Ferpa provides a slightly different definition for "treatment records" than for "education records," the difference is, shall we say, academic, because the same disclosure rules apply: "[A] school may disclose an eligible student's treatment records for purposes other than the student's treatment provided that the records are disclosed under one of [Ferpa's] exceptions to written consent." And one of those exceptions to disclosure with consent? When the student sues the institution.
FERPA is the same law that schools routinely use to block public record requests. So now, not only can schools keep their scandals in the dark, they also can use it to fight off lawsuits in court related to those scandals. For American universities, FERPA really is the gift that keeps on giving.
Add to this the allegation laid out in a letter in which Jennifer Morlok, a senior staff therapist at Oregon's counseling center, says she was told to provide "non-standard care" to the student that "went against my ethical and professional standards." Morlok says that when she tried to get outside information on how to best treat the student, she was "scolded and my job threatened." The letter also is signed by Karen Stokes, executive assistant to the director of the counseling center.
Needless to say, I was disappointed with this reaction, especially by specific individuals in Senior Leadership capacities, along with UO Legal Counsel, who began to look out for the "the system" and their loyalty to that system (or is the best guess that I can gather) and neglected the very client/student we were supposed to be supporting.
In the Chronicle, Pryal concludes that this means rape victims should seek off-campus counseling to protect the privacy of their records, although they run the risk of student health plans not covering the cost. As for the players, two were able to transfer to other schools to play basketball, according to the student's lawsuit. The local district attorney declined to press charges against them; a month later Oregon's director of student conduct found them responsible for sexually assaulting her.
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