Since moving to shut down their normal operations in response the coronavirus health emergency, many schools and districts have moved to online operations. That has led to a range of challenges, including some relating to the confidentiality of student information. Notably, school therapists who provide related services to students with disabilities and others are seeking to connect with students via video links, but many of the platforms available for such communication are not approved under federal privacy laws. Both the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPPA) impose limits that could get in the way of therapists serving students online.
To alleviate this challenge, on March 18, 2020 the U.S. Department of Health and Human Service’s Office for Civil Rights issued a statement that it:
“[W]ill exercise its enforcement discretion and will waive potential penalties for HIPAA violations against health care providers that serve patients through everyday communications technologies during the COVID-19 nationwide public health emergency.
This exercise of discretion applies to widely available communications apps, such as FaceTime or Skype, when used in good faith for any telehealth treatment or diagnostic purpose, regardless of whether the telehealth service is directly related to COVID-19.”
The full text of the ruling can be found here.
Barton Gilman attorneys are carefully monitoring federal and state actions that impact schools during this crisis.
For more information
This update was written by Paul T. O’Neill. New York schools with questions should reach out to Paul, Jaime Fernand, or Lisa Holtzmuller. If you have questions about compliance in Massachusetts or Rhode Island, please contact Matthew R. Plain, Greg Vanden-Eykel, or Rita E. Nerney at 888.273.9903.
About Barton Gilman
Barton Gilman provides the full scope of legal services to education clients – including traditional and non-traditional public schools, charter schools, charter management organizations, private schools, education advocacy organizations and other education-related organizations – throughout Massachusetts, Rhode Island and New York. For more information, please click here.
