Originally appeared in the CAS Weekly Newsletter.
Written by attorney Peter J. Maher.
Dear Legal Mailbag:
A few weeks ago, I received a phone call from an outside therapist who is seeing one of my students who refuses to come to school. I did not have a release to speak to this individual but, without prompting, he revealed several pieces of information to me about the student that I felt rose to the level of filing a DCF referral due to my mandated reporter responsibilities. There was no purpose to his call to me other than to tell me this information. I did not raise an objection to him providing me the information; I just listened. I assumed DCF was already aware of it, but they were not. Should I have interrupted this therapist and refused to take the information due to the fact that we didn’t have a release, or was he out of line for giving it to me?
Head in the Sand
It is true that releases to exchange confidential student information are important pieces of sharing information about students with third parties. Under the Family Educational Rights and Privacy Act (FERPA), schools generally may not share personally identifiable information from student records to third parties without written parental consent. Here, however, it does not appear that you shared any such information from the student’s education records with the outside therapist. While FERPA governs the disclosure by schools of personally identifiable information from education records to third parties, it does not prohibit a school employee from merely receiving information about students from third parties.
It is also true that other professions and providers outside of the school system may have their own ethical and legal obligations with regard to patient confidentiality, and they generally will require a release before speaking with school employees about their patients. While the applicability is unclear in this case, those confidentiality obligations likely have exceptions permitting such professionals or providers to disclose information to others in certain circumstances related to the safety of the patient, especially a child.
Regardless of this outside therapist’s compliance with his own ethical or legal rules regarding confidentiality, you were correct to make a referral to DCF. Just as you cannot un-ring a bell, once a mandated reporter learns of information, within the course of his or her employment, that reasonably causes him or her to suspect or believe a child has been abused or neglected or placed at imminent risk of serious harm, the mandated reporter must make a referral to DCF, regardless of whether the information should have been shared with the mandated reporter in the first place.
In short, while it is good practice to obtain a valid release to exchange confidential information before communicating about students with third parties so that such communication can be two-way, it is not a violation of FERPA to receive unsolicited information about students from third parties. In fact, sometimes information about students is thrust upon a school administrator, for example from a community agency or from a parent complaining about another student. Moreover, regardless of the status of any releases, in the event you, as a mandated reporter, receive information from a third party that would reasonably cause a suspicion or belief that a child has been abused or neglected or placed at imminent risk of serious harm, you must make a DCF referral.