A Pennsylvania court's view of HIPAA, FERPA, and student records

The Pennsylvania Superior Court considered, and rejected, the notion that two federal privacy statutes create privileges against disclosing student records during the course of litigation discovery. But a state law, however, might bar production of such records.

The case involved a former student’s discovery demands in a case against a private special school. Student alleged he suffered sexual abuse and sought records relating to other similar possible past claims against the school. The school opposed producing any such records citing various statutory confidentiality protections against disclosing records involving other students.

The court found that the Health Insurance Portability and Accountability Act of 1996, known as “HIPAA,” and the Federal Educational Rights and Privacy Act, known as “FERPA,”  set forth the parameters by which protected student records can be disclosed and that, generally, disclosure pursuant to court order is an exception to the non-disclosure rule. In this respect, the state court decision comports with the statutes.

More interesting is how the court viewed the argument about a privilege against litigation disclosure based on state law. The Pennsylvania Mental Health Procedures Act, known as the “MHPA,” is seen as creating a privilege, with the only exception being legal proceedings permitted under the MHPA. The court did not decide the ultimate issue but instead sent the case back to the trial court to consider with the school was a “facility” under the MHPA and whether the MHPA actually applied. 

The case is a good reminder that many times state laws can offer more protections (or obstacles depending on your position) than federal laws. 

The rules of evidence and employment and school investigations

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

Among other things, employee said the trial court was wrong to use the investigation reports, claiming they were hearsay evidence. Hearsay, under the rules of evidence, is an out of court statement used to prove the truth of the matter asserted and is not admissible. 

The court first held that employee statements to the investigators were not hearsay. Although it would appear otherwise, those statements fall into the too-often overlooked “not used to prove the truth of the matter asserted” part of the hearsay definition. In this case, the issue was not whether the conduct actually occurred; rather, the issue is the employer's reasons for terminating employee. “Because [the reports] were offered to prove what was said to [the investigators], and thus what [the investigators] relied on in making the decision to fire [employee], the statements were not offered to prove the truth of the matter asserted.”

Next, although the court found the reports themselves were hearsay, they were admissible under the business records exception of Rule 803(6). This exception sets forth criteria the reports must fit in order to be admitted as evidence notwithstanding hearsay. Among the criteria are that a report be made at or close to the events by a person with knowledge, kept in the regular course of business, and that making such reports is a regular business practice. Because the reports met the criteria, they were admissible as evidence, which ultimately lead to a decision in favor of the employer.

Bear in mind, and as the court notes, if reports are prepared in anticipation of litigation, they may not be admitted. But in matters of sexual harassment, employer policy will require such an investigation regardless of possible litigation. Beyond the employment setting where such processes are in place, education institutions may consider developing investigation practices for other matters, from parent complaints about special education implementation to investigations of security breaches and more. 

Of course, such practices should be developed with advice of counsel to weigh the pros and cons of such investigations and records.

College-student disciplinary contract claims

The Pennsylvania Superior Court recently revisited – and rejected – breach of contract claims brought by a student dismissed from a private college. Reardon v. Allegheny College, --- A.2d --- 2007 WL 1576007 (Pa. Super.)  Thus, the Pennsylvania courts continue to adhere to a rather strict contract view of such claims, rejecting broader “due process” type claims.

The disciplinary procedures in the student handbook were the relevant contractual terms. The student did not argue that the terms were not bargained for, that she was unaware of the terms, or that the terms were ambiguous. The terms set forth “minimum procedural safeguards notice, the admission of relevant testimony, the right to call witnesses and present evidence, and the right to be represented by a member of the college community.” Reardon at pages 8-9. The student handbook did “not contain complicated procedural or evidentiary rules.” Reardon at page 8.

The court reiterated that, if a student cannot show a breach of any contractual terms, judges will not

review the college’s private, internal decisions, such as whether the dismissal was “just.” One might at first think this college-student contract rather unusual as it appears that, when the student claims the college did not perform as required, the college gets to unilaterally judge its own performance. But that is not the case. In a contracts class, we might say there is a difference between the customer claiming Acme Widget Co. failed to ship widgets versus Acme deciding to end its contract to sell widgets to the customer. Here, the court did consider student’s allegations of non-performance of the required terms, and concluded the college honored its promise to abide by the terms. But as such, the college’s decision (made in accordance with the terms) to “terminate” the contract was not reviewable. 

This case indicates that simple clarity of contract terms is preferred. That would tend to cut short any argument that the terms are ambiguous or similar contentions that distract attention from the plain words of the contract. Instead, the court will focus on compliance with simple, clear terms. And, being simple and clear, the terms should be easy for the college to follow in practice and thus “suffice to insulate the institution’s internal, private decisions from judicial review.” Reardon at page 6.