Thursday, January 17, 2008

Playing Doctor


photo credit-Brendan Adkins
creative commons license


***Disclaimer-I am not a lawyer, so only a fool would take anything I say as legal advice ***

On a local autism list that I am on, someone wanted to go observe in one of the special ed classrooms, but was told that they couldn't, because it would be a HIPAA violation.

Huh???

It never ceases to amaze me what utter nonsense people will spew at times, especially if it serves to cover their own butt in some way.

HIPAA (for all of those outside the US, and anyone inside that US that has been asleep for the past several years, stands for Health Insurance Portability and Acountability Act. It is a law passed by congress in 1996 in the US that (amongst other things) is supposed to ensure that your private medical information stays private (except from government agencies, anyone doing research, and anyone your insurance company decides to share the info with-but that's a rant for another day).


The practical application of this law is that you have to sign a form at your doctor's office saying that you are aware of your HIPAA rights, you also sign a form for your insurance company waiving those rights (or they won't insure you), and there are extra people employed at all levels of healthcare spending time making sure that people's rights are not violated (proper forms must be filled out, and access to medical records is controlled-while any clerk at the insurance company can see your records, your doctor has to jump thru password protected hoops to prove he qualifies to see them).

The people that are affected by HIPAA are health care practitioners (like doctors, nurses, pharmacists, etc.), health care entities (like hospitals and nursing homes), insurance companies, and any business entity that contracts with either of these (like the cleaning service for a doctor's office). All of those people can get in big trouble if they start selling copies of Britney Spears' hospital records to the National Enquirer. But nowhere in any of the law is a school listed as being under the purview of this law, and I have heard no references in the media of schools and HIPAA violations.

The first question that needs to be answered, is if a school is even a "covered health care entity" under HIPAA. The short answer is probably not, unless the school is billing for the services of its school nurse or transmitting electronic medical records on patients. If the school is not a covered health care entity, then HIPAA only applies to the school nurse, and not to the school as a whole. Since the school nurse shouldn't be walking into classrooms and announcing who has what "disease" or is taking what meds, there should be no conflict from HIPAA in having student's parents coming in to observe in a classroom.

The suggestion that because other special ed students are present in a class, and that other parents might not want you to know their kids are in special ed is also very suspect. All of the kids in school know who is in special ed. Unless the school wishes to provide a separate classroom for every special ed student, it will not be a secret who is in special ed. So allowing parents to observe a class does not violate any confidentiality. Indeed, there is no expectation of total privacy in a public school. If there was, then parents could never go to any school function where they might see other students, such as athletic events, assemblies, or school outings.

There is a federal law that governs confidentiality of school records. It's a law that has been around since the 1970's, and is called the Family Educational Rights and Privacy Act (or FERPA-gotta love those governmental acronyms). According to Wrightslaw.com:

The purposes of FERPA are twofold: to ensure that parents have access to their children's educational records and to protect the privacy rights of parents and children by limiting access to these records without parental consent.


Some schools may fall back on FERPA as the reason that parents are not allowed to observe in class. But even that doesn't have a leg to stand on.

Again, Wrightslaw.com (one of my favorite sites for special education law) addresses this question well, when talking about parental involvement and what the No Child Left Behind act has to say.

Schools that receive Title I funds must meet with parents to develop a parental involvement policy and must distribute the policy to parents and the community. Parents of children who attend Title I schools shall have access to school staff, opportunities to participate in the child's class, and to observe classroom activities. (20 U.S.C. § 6318)


So, to get back to the original point. From what I know and have read regarding HIPAA and FERPA, neither law should preclude or prevent a parent from observing their child in a classroom, or observing a proposed classroom before a child is placed in it. Indeed, the NCLB act mandates parental involvement, and spells out a parent's right to observe classroom activities.

To deny such rights (IMO) means either that people in the school are supremely ignorant, arrogant, or just trying to hide something.

7 comments:

kristina said...

Repeat the last phrase ("trying to hide....") a few times over.......

Ange said...

happens here all the time (not letting parents observe), weird thing is that one elementary school has no problem but then another one does. And of course they aren't consistent with the various students (one parent can observe his student but then another one cannot). Our school district very much uses the "It's an IEP team decision" and divide and conquer method. They tell parents different things, provide ridiculous reasons, etc. The big thing right now is it is a "district practice" [not policy] that outside consultants cannot observe a child in the classroom setting. It's the next thing on my list to tackle after the seclusion room (http://miscthing.blogspot.com/2008/01/it-took-two-years.html). Since our kids are so different at school, I think I might fight this on the right to an idependent evaluation. We will see.

It's hard though because they really try to pacify you and then the issue ends with you, instead of fixing the big picture.

Thanks for posts like these that send flares up for people, so they know to question practices. If you don't know to question what the school districts are doing, you don't know what to research and protest.

Club 166 said...

Kristina,

I've never understood the "little fiefdom" mentality of some school administrators. It seems that the instinct to exclude parents is almost instinctive to some, whether or not there is something to hide.

Ange,

I didn't realize until I looked into this a couple of days ago that the NCLB act spelled out a explicit right to observe in the class. I think that's huge, and would be hard for a district to dispute.

But I agree with you that a "seclusion room" is atrocious and needs to be addressed. We insisted in our son's IEP that he never be put into their seclusion room at a prior school he was at.

Joe

Regan said...

Club 166,
Thanks for detailing this issue, and the note about NCLB.

This is ubiquitous--I am on lists where parents are reporting all sorts of restrictions on their ability to observe their children in class, can but must not write anything, can only for 15 minutes, can but must give 1 month notice, or can't at all, with HIPAA and privacy invoked. As Ange noted, also dependent on program and school, and I might comment...circumstance.
I didn't have any problems until I made a comment in a teacher-parent meeting about another child biting my daughter during one of my observations, and the next day "privacy" was invoked and I was asked to leave her at the door.
In 12 years of education of my typical daughter, beyond signing in at the office, I and, to my knowledge except in the situation of a restraining order, no other parent has been restricted in our ability to visit a classroom, observe our child or otherwise participate in the school. It is quite a contrast.

Daisy said...

Our school district bills insurance or Medical Assistance for speech therapy services, and at times PT and OT may be billed there as well. other than that, I've never known a classroom to fall under any kind of medical category.

Joeymom said...

At our preschool, I was asked not to come as it might "disturb or distract Joey." Now in elementary, the teachers are asking why I don't come more often. And Grandma has gone in to see him, too. No problemo. And he's having a great year. Funny that.

Club 166 said...

Daisy,

Even if a school does qualify as a health care entity, that should not preclude visits by parents. All it should mean is that they need to be careful to keep medical records secure.

Joeymom,

Buddy Boy's present school is much more accepting of visits than his last one. And amazingly, he's doing much better, too. Hmmm...

Joe