Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

[Brett Sokolow <>]

Privilege depends on whether the victim put her mental state into issue in the lawsuit, which is something to be decided by a judge, not UO.  Further, the judge orders discovery under specific terms, as the result of well-argued motions practice by qualified legal advocates.  UO cannot simply circumvent that process to access records without a court order, which is what it did here.  

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

President & CEO, The NCHERM Group LLC

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From: Stephanie McClure <>
Date: Monday, March 2, 2015 at 7:34 PM
To: "" <>
Cc: "Di O'Neill, DSW" <>, "" <>
Subject: Re: Raped on Campus? Don’t Trust Your College to Do the Right Thing - Commentary - The Chronicle of Higher Education

​Not sure if this is helpful or not, but when I read this article I had a discussion with my colleague Lorena Reynolds who practices family law in Oregon and this is what she said:

First, you start in the evidence code and look at privilege. OEC 40.230 (phd, md), 40.250 (msw), 40.262 (counselors). This governs what is admissible at trial. The issue in that article, though, is about discoverable material--that is, what can one side get from the other prior to trial in order to prepare for trial. This is governed by the Oregon Rules of Civil Procedure. ORCP 36 talks about the general discovery rules. ORCP 36B(1) specifically gives the rule that anything reasonably calculated to lead to the discovery of admissible evidence is discoverable.
Then, you have to go back and look at ORE regarding putting at issue ones mental health. So, any time you are involved in a case for emotional distress (intentional or negligent) or custody or anything else where your mental health is at issue, those records are likely to lead to admissible evidence.
You can ask for a protective order limiting the discoverability or prohibiting re-disclosure, but these are standard common law rules that are older than our legal system.

So it seems that counseling records can be discoverable, meaning that privilege is waived if the survivor puts their mental state at issue as a claim or defense in a lawsuit. This also may be the case in other states besides Oregon, and should be researched. Obviously there are big implications of this, and it is something that survivors need to be fully informed about. 

-Stephanie 

-- 

Stephanie L. McClure | Graduate Fellow

Emphasis: Rape, Sexual Assault, and Dating Violence Prevention

Women Studies at the University of Maryland, College Park 

P: 541.974.3722 | View my profile on linkedin

On Mon, Mar 2, 2015 at 9:53 PM, Saundra Schuster <> wrote:

Here is the applicable analysis:

HIPAA (Health Insurance Portability and Accountability Act of 1996) is a federal law passed by Congress intended to establish transaction security, privacy and other standards to address concerns about the electronic exchange of health information.  However, the HIPAA Privacy Rule excludes from its coverage those records that are protected by FERPA at institutions that provide health or medical services to students.  This is because Congress specifically addressed how education records should be protected under FERPA.  For this reason, records that are protected by FERPA are not subject to the HIPAA’s Privacy Rule 

HIPAA will be the applicable governing privacy law if the counseling center transmits electronic data about patients, such as health insurance or billing information, AND if the department treats community members as well as students.  If both of these prongs are met then HIPAA will provide the legal framework for addressing personal health information.  If only one, or neither of these applies then FERPA will be the governing privacy law because FERPA applies to all student records.

            If FERPA, not HIPAA, is the governing law, it is important to note that FERPA specifically exempts health and counseling treatment records under the definition of education records protected by the Act 

34 C.F.R. 99.3

Education Records

 (a) The term means those records that are:

(1)  Directly related to a students; and

(2)  Maintained by an educational agency or institution or by a party acting for the agency or institution

(b) The term does not include:          

       (4) Records on a student who is 18 years of age or older, or who is attending an institution of postsecondary education that are:

         (i) Made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his or her professional capacity or assisting in a paraprofessional capacity;

         (ii) Made, maintained or used only in connection with treatment of the student

         (iii) Disclosed only to individuals providing the treatment.  For the purpose of this definition “treatment” does not include remedial educational activities or activities that are part of the program of instruction at the agency or institution*

*  See advisory letter on the FPCO website regarding this issue

http://www.ed.gov/policy/gen/guid/fpco/ferpa/library/copeuna.html

     Therefore, FERPA is the governing privacy law for student education records in general, but for treatment records created and maintained by a physician, psychiatrist or psychologist or recognized professional, the state statutes on privilege of health and mental health records and professional ethical requirements imposed by licensure will govern the manner in which they are released. Thus, the general standard for sharing private information under FERPA, that is, with a “school official” that “has a legitimate educational need to know”, is not applicable for sharing psychological or medical treatment records internally.  The applicable law for release or sharing of these records would be the applicable state law for counseling based privilege.

Saundra K. Schuster, Esq.

Attorney-at-Law

Partner, The NCHERM Group, LLC

Columbus, Ohio Office The NCHERM Group Office

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On Mar 2, 2015, at 9:05 PM, Di O'Neill, DSW <> wrote:

Subject: Raped on Campus? Don’t Trust Your College to Do the Right Thing - Commentary - The Chronicle of Higher Education

Hello SAPC members,
Can anyone shed light on the assertions made in the article below concerning client records, sexual assault, and if / when Universities ever have access to student counseling center records?
Thank you in advance for your expertise and support!


http://chronicle.com/article/Raped-on-Campus-Don-t-Trust/228093/?cid=pm&utm_source=pm&utm_medium=en


Di O'neill, DSW, LCSW
Counseling and Psychological Services
University of Pennsylvania
3624 Market Street
First Floor, West
Philadelphia, Pa
215-898-7021




http://chronicle.com/article/Raped-on-Campus-Don-t-Trust/228093/?cid=pm&utm_source=pm&utm_medium=en


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