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A rape case at the University of Oregon has raised questions about the privacy of students who attend campus health clinics. Records of a student's mental health sessions were accessed by the school to fight a lawsuit related to the alleged rape. Kristian Foden-Vencil of Oregon Public Broadcasting reports.
KRISTIAN FODEN-VENCIL, BYLINE: The unidentified student says she was raped by three basketball players last year. The University of Oregon found the players responsible, kicked them off the team and out of school. But there was no court case. Nobody was found guilty of any crime, and it turned out one of the players had been suspended from a previous college team over allegations of another sexual assault. Those are some of the reasons the woman sued the University for mishandling her case. And here's where the privacy issues surface. The student got therapy at the university's health clinic, and in preparation for the mishandling complaint, the university accessed those records and sent them to its own attorney.
KELSEY JONES: It's very concerning for a lot of people.
FODEN-VENCIL: Kelsey Jones is a 21-year-old student at the University of Oregon. She works with the Organization Against Sexual Assault and says she won't go to the campus clinic.
JONES: It's ten times harder now to keep that health and feel safe and feel OK to share 100 percent of what you're feeling.
FODEN-VENCIL: Two employees at the university's counseling center were also disturbed by the school's actions. They fired off an open letter. In it they said the health records were accessed without proper authorization. One of them, a therapist, Jennifer Morlok, said her job was threatened and she felt the school was forcing her to violate her professional ethics.
The university administration wouldn't talk on tape for this story, but in court papers, the school argued that since the student went to the school's health clinic, her health records belong to the school, and therefore the school could access them. In addition, the school argued that because the student claimed emotional distress, a medical claim, the school was entitled to her medical records under a law known as FERPA, the Family Educational Rights and Privacy Act.
Steve McDonald is a FERPA expert and an attorney for Rhode Island School of Design. He says in this case the medical privacy law known as HIPAA does defer to FERPA, and the school is within its rights.
STEVE MCDONALD: I would think in almost any case anywhere in the country, if you have an emotional distress claim, those records would be relevant and you would get them through some process.
FODEN-VENCIL: So under FERPA, at a university-run health clinic the university can access student medical records if they're relevant for a legal defense. That may come as a surprise to anyone who assumed that doctor-patient privilege is the same regardless of where the care is received. Lynn Daggett is a professor at Gonzaga Law School. She says the situation allows universities to avoid an important legal process.
LYNN DAGGETT: You know, the way the school would access the records in this situation with a private therapist is that during discovery before trial, they would ask her to voluntarily agree or issue a subpoena for them. And she would have every right to make a motion to the court to quash or modify the subpoena - have the court look at her medical records in camera, which means in secret in the judge's chambers, and have the court sort through what appropriately would be shared with the school and what would not be.
FODEN-VENCIL: The issue has caused such a stir, the U.S. Department of Education put out a statement. It acknowledged that FERPA would permit the treatment records to be disclosed in litigation between the student and the institution, but it also said, quote, "any attempt to intimidate individuals who raised complaints about sexual violence would raise serious concerns of retaliation." Back at the University, student Kelsey Jones is far from satisfied.
JONES: Whether it's legal or not legal, I think it's morally and ethically not right.
FODEN-VENCIL: For NPR News, I'm Kristian Foden-Vencil in Portland.
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