Wednesday, October 24, 2012

Trouble with FERPA and HIPAA?

In a recent response to a question on one of the listservs I follow, Student Press Law Center Executive Director Frank LoMonte made it perfectly clear that student journalists are not restricted by these two federal laws. Further, he wrote, university officials in California who attempt to stop student reporters in our state from reporting by citing one of these laws is likely breaking the law themselves.

The original question concerned the rights of a photographer who was yelled at for taking a photo of a student athlete being put on a stretcher outside her college's health center.

Here's LoMonte's reply:
It is flat-out impossible for a student media organization to violate either FERPA or HIPAA, period, end of story. 
HIPAA applies only to two people: (1) your health care provider and (2) your health insurance provider. And HIPAA applies only to information that you gather in that capacity — information that is shared with you in confidence because you are a health care provider or an insurer. Unless the photographer also does appendectomies on the side, that person is not covered by HIPAA at all, and can freely share any health information that they learn through news-gathering, e.g., being in a public place when a person is put into an ambulance. What you look like lying on a stretcher is not a piece of confidential medial information — it's a publicly observable fact. So that one is just frivolous. 
FERPA applies only to information that comes out of a confidential student record that is maintained in university files. Again, what you look like lying on a stretcher is not confidential information gleaned from files maintained by your university. Anything that is public observable, or that you obtain with the student's consent, or that you gather through your own reporting, is your information to use as you see fit and is not FERPA information, ever.  
Any college that tries to restrain the publication of information by student media under HIPAA or FERPA is acting in bad faith and is in violation of the California Education Code, which protects both the public-university and private-university media. At a public institution, restraining what a student news outlet publishes would also be a violation of the First Amendment. If anyone is being given the FERPA excuse or the HIPAA excuse, SPLC wants to hear about it, so please let us know.
Frank D. LoMonte, Esq.
Executive Director - Student Press Law Center
(703) 807-1904, ext. 121

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