This Pavela article addresses issues relevant to the Family Education Rights and Policy Act (FERPA). This act was developed by Sen. James Buckley of New York, and voted into law in 1974. Midway though the article, there is a true/false section that is intended to be used at institutions for their training exercises in understanding FERPA. In the context of this article the true/false section is a good tool for helping the reader to dispel the myths and misconceptions of FERPA and its application.
According to the article there are three (3) major rights that FERPA provided “parents and eligible students”; the right to inspect and review or the right to access education records; the right to challenge the content of education records; and the right to consent to the disclosure of education records. As time progressed and case studies began to grow, there more precedence was set in terms of what the institutions were able to do to control their records in terms of their release to other agencies (medical, employment, etc.), individuals (whether parents or eligible students), other institutions, or law enforcement agencies. All of the case studies were necessary, but were always in need of being amended. These things can clearly be very imperfect, especially where it involves students’ rights and personal records.
I. Definition of Education Records This article is packed with information on decisions about the definition of education records and what should be considered inclusive in that term. These decisions have been made by both institutions and supreme courts. In the case of the definition of “education records” and what should be included in education records for release, I am interested to know some of your viewpoints of what should be included in that terminology and who should be making that decision?
II. Word Use As I read the article I observed the power of the use of a single word. In the case of this article there is an extraordinary use of the word “may.” The use of this word is very powerful in the case of FERPA as well as the case of any regulation, law, or contract. In the legal world, the word “may” allows for ambiguity and it implies that something has a possibility of being done but in any case, it allows for the determination to be made by an entity to act or not act on an issue as long as it acts in the best interest of the institution and/or individual. The decisions that could result from the use of such language could turn out to have positive or negative results. It appears to me that many of the difficulties that have arisen have occurred because of this play on words. In the case of an institution, it can open it up to a lot of unnecessary scrutiny. In the case of an individual, there is the perception of impropriety that can occur if there is a violation of an individual’s rights because there may be some contradiction in law due to institutional deference. A more effective manner of dealing with these ambiguities would be to use language that is more definitive like “will” or “shall.” The following two excerpts illustrate scenarios where the use of the word “may” supports the deference of the institution. What’s your opinion?
III. Who Really has the Power with FERPA? According to this section of the FERPA regulation, it appears that the institution is given a great deal of power over records of a very personal nature that one should have access to. An institution should be required to give a student’s access to their health records at any time. I am under the opinion that the institution should have some controls. However, a regulation that states that an eligible student cannot have access to their health records unless THE INSTITUTION uses the information for some reason other than treatment seems to give the institution too much control. I was not certain that I agreed with such a policy. Initially, I was under the impression that FERPA gives too much control to the institution over the health records (in this case) of a student. It wasn’t until I had a discussion with my wife, who has worked in hospital administration, that I got a clear perspective of the position of the university. While I was looking at FERPA in this scenario from the perspective of the student, I neglected to consider the fact that the institution is considered to be a third party and a student should be able to gain their medical records from their own primary care physician instead of from the institution which is not a primary resource for medical information. Should a student or parent have the right to gain their medical records from a third party source in? Is there fault in that rule or not and why? (Take a look at true/false answer #5).
III. I believe the distinction here is that a student can not claim their rights under FERPA to gain access because medical records are not considered "educational" records - unless the institution has used their medical information for some other reason than for medicial treatment - The medical records are protected under HIPAA. With that said, since most health records (clinical visits) will be shared with a third party (most likely insurance providers)it is then covered under FERPA. Still confused? Don't worry do what most institutions do... don't provide information without a release as.. "it depends."
While institutions are afforded some level of autonomy regarding FERPA-related documents (and can use the exceptions to justify disclosures without much interrogation from the feds), the government has the ultimate power to withhold funds. I'm not sure how intimidated institutions should be, though, since they've yet to administer anything more punitive than a second chance...
It is, indeed, a weak and ambiguous law. Seems to be a trend in our legal system...
This Pavela article addresses issues relevant to the Family Education Rights and Policy Act (FERPA). This act was developed by Sen. James Buckley of New York, and voted into law in 1974. Midway though the article, there is a true/false section that is intended to be used at institutions for their training exercises in understanding FERPA. In the context of this article the true/false section is a good tool for helping the reader to dispel the myths and misconceptions of FERPA and its application.
ReplyDeleteAccording to the article there are three (3) major rights that FERPA provided “parents and eligible students”; the right to inspect and review or the right to access education records; the right to challenge the content of education records; and the right to consent to the disclosure of education records. As time progressed and case studies began to grow, there more precedence was set in terms of what the institutions were able to do to control their records in terms of their release to other agencies (medical, employment, etc.), individuals (whether parents or eligible students), other institutions, or law enforcement agencies. All of the case studies were necessary, but were always in need of being amended. These things can clearly be very imperfect, especially where it involves students’ rights and personal records.
I. Definition of Education Records
This article is packed with information on decisions about the definition of education records and what should be considered inclusive in that term. These decisions have been made by both institutions and supreme courts. In the case of the definition of “education records” and what should be included in education records for release, I am interested to know some of your viewpoints of what should be included in that terminology and who should be making that decision?
II. Word Use
As I read the article I observed the power of the use of a single word. In the case of this article there is an extraordinary use of the word “may.” The use of this word is very powerful in the case of FERPA as well as the case of any regulation, law, or contract. In the legal world, the word “may” allows for ambiguity and it implies that something has a possibility of being done but in any case, it allows for the determination to be made by an entity to act or not act on an issue as long as it acts in the best interest of the institution and/or individual. The decisions that could result from the use of such language could turn out to have positive or negative results. It appears to me that many of the difficulties that have arisen have occurred because of this play on words. In the case of an institution, it can open it up to a lot of unnecessary scrutiny. In the case of an individual, there is the perception of impropriety that can occur if there is a violation of an individual’s rights because there may be some contradiction in law due to institutional deference. A more effective manner of dealing with these ambiguities would be to use language that is more definitive like “will” or “shall.” The following two excerpts illustrate scenarios where the use of the word “may” supports the deference of the institution. What’s your opinion?
III. Who Really has the Power with FERPA?
ReplyDeleteAccording to this section of the FERPA regulation, it appears that the institution is given a great deal of power over records of a very personal nature that one should have access to. An institution should be required to give a student’s access to their health records at any time. I am under the opinion that the institution should have some controls. However, a regulation that states that an eligible student cannot have access to their health records unless THE INSTITUTION uses the information for some reason other than treatment seems to give the institution too much control. I was not certain that I agreed with such a policy. Initially, I was under the impression that FERPA gives too much control to the institution over the health records (in this case) of a student. It wasn’t until I had a discussion with my wife, who has worked in hospital administration, that I got a clear perspective of the position of the university. While I was looking at FERPA in this scenario from the perspective of the student, I neglected to consider the fact that the institution is considered to be a third party and a student should be able to gain their medical records from their own primary care physician instead of from the institution which is not a primary resource for medical information. Should a student or parent have the right to gain their medical records from a third party source in? Is there fault in that rule or not and why? (Take a look at true/false answer #5).
III. I believe the distinction here is that a student can not claim their rights under FERPA to gain access because medical records are not considered "educational" records - unless the institution has used their medical information for some other reason than for medicial treatment - The medical records are protected under HIPAA. With that said, since most health records (clinical visits) will be shared with a third party (most likely insurance providers)it is then covered under FERPA. Still confused? Don't worry do what most institutions do... don't provide information without a release as.. "it depends."
ReplyDeleteWhile institutions are afforded some level of autonomy regarding FERPA-related documents (and can use the exceptions to justify disclosures without much interrogation from the feds), the government has the ultimate power to withhold funds.
ReplyDeleteI'm not sure how intimidated institutions should be, though, since they've yet to administer anything more punitive than a second chance...
It is, indeed, a weak and ambiguous law. Seems to be a trend in our legal system...