New Federal Guidance on Student Privacy and Restraint/Seclusion

If compliance is one of your New Years resolutions this year, school districts and officials are in luck. Recently, two new guidance resources became available to assist with compliance as to student privacy and restraint and seclusion.

Late in December, 2019, the United Staes Department of Education (DOE) and the Department of Health and Human Services issued a Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to Student Health Records. The 27-page document, structured in question and answer format, addressses common compliance issues with respect to student privacy under both Acts. It explains the distinctions and intersections between the two Acts in the educational setting. Privacy questions commonly arise for educators and, as health services increase in educational institutions to address student needs, it is important for educators and parents to be aware of this new guidance.

Just this week, the DOE Offices of Civil Rights (OCR) and Special Education and Rehabilitative Services (OSERS) partnered to create a video to further educate school districts and officials regarding appropriate restraint and seclusion practices. This was the fulfillment of a promise that the DOE made at the beginning of 2019. At that time, the DOE announced an initiative to reduce the inappropriate use of restraint and seclusion on children with disabilities and ensure compliance with federal law. Though many states now have their own restraint and seclusion regulations, this guidance remains critical to school districts and officials to ensure compliance with federal law. Furthermore, numerous states have no existing regulations or statutes relating to restraint and seclusion and some, such as Ohio here in the Sixth Circuit, have only regulations relating to restraint. To check on your own state’s level of recognition, you can review the summary from the DOE here.

Privacy and restraint and seclusion are both emerging and potentially thorny issues for school districts and officials from a compliance standpoint. As a result, these new guidance resources are welcomed supports for the new year.

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