Managing the Coronavirus (COVID-19) and maintaining compliance with the Family Educational Rights and Privacy Act (FERPA), and the Americans with Disabilities Act (ADA).
DO
- Notify your local health department immediately upon learning that a member of your school community may have been exposed to or has tested positive for COVID-19. This includes students, employees, board members, school committee members, volunteers, contractors, and/or members of a student’s family.
- Notify your families and students that there has been a member of your school community who may have been exposed to or has tested positive for COVID-19, in accordance with established policies and procedures. Ensure that notifications are sent to families in all known primary languages that are spoken in your students’ homes.
- Notify your families and students of the precautions school administration is taking based on the probable or positive diagnosis of a school community member.
- Remind school faculty/staff of FERPA and ADA requirements, and emphasize that they can only access personally identifiable information (PII) of students and confidential medical information of school employees as they have been authorized to do so to carry out their jobs.
- Apply preventative and response measures uniformly to all students and faculty/staff.
- Confer with the local health department and legal counsel if school administration has questions regarding what student and employee information to release.
- Continue to seek guidance from federal, state, and local public health, education, and emergency preparedness agencies to gather information concerning the spread and severity of COVID-19.
DON’T
- Release the identity or any PII of any school community member who may have been exposed to or has tested positive for COVID-19.
- Answer questions from school community members in a way that could inadvertently disclose PII, information contained in educational records, or medical information of school employees and students.
- Release information that may be considered PII or confidential employee or student medical information without conferring with the local health department and legal counsel.
- Release PII or confidential employee or student medical information to school faculty/staff unless such information is necessary for that faculty/staff member to carry out his or her job responsibilities.
Lastly, FERPA contains an “emergency” disclosure exception, which permits schools to disclose a student’s relevant PII contained in a student’s education record without prior consent to an “appropriate party” in order to address a health or safety emergency when the disclosure is necessary to protect the health or safety of the student or other individuals. This is an extremely limited disclosure, and any disclosure of a student’s PII in reliance upon this exception must be recorded in that student’s education record with a specific description of the articulable and significant threat that formed the basis of the disclosure. You must also record the identity of all persons / entities to whom any such disclosure was made. “Appropriate parties” to whom disclosures may be made typically include law enforcement agencies, public health officials, and parents/guardians. You should consult with your Board, School Committee, and/or legal counsel prior to making any disclosure under this exception.
For more information
If you have questions about compliance in Massachusetts or Rhode Island, please contact Rita E. Nerney, Greg Vanden-Eykel, or Matthew R. Plain at 888.273.9903. For New York schools, please reach out to our New York office at 212.792.6246 or to Paul O’Neill, Jaime Fernand, or Lisa Holtzmuller.
Barton Gilman provides the full scope of legal services to education clients – including, private schools, traditional and non-traditional public schools, charter schools, charter management organizations, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York. For more information, please click here.
