Update: Dahlia Bazzaz reports in the Emerald that UO may not have violated FERPA – just the laws of decency and common sense – by snooping around in this student’s counseling records, looking for information they could use against her in a lawsuit.
A lawsuit which she brought after having been (allegedly) gang raped by three members of UO’s basketball team, including one whom Coach Dana Altman had brought to campus despite (allegedly) knowing that he had a history of sexual assault.
Update: The Huffington Post has more, including the letter, which calls out the UO General Counsel’s office for special attention:
Josephine Woolington has the report in the RG, here:
Morlok wrote in her email that she was “scolded and (her) job was threatened” when she sought legal advice after a UO official told her to provide the student with “non-standard care” because the student was likely going to be involved in a lawsuit against the university. Such a request, Morlok said, “went against my ethical and professional standards.”
Morlok also alleged that the student’s clinical records were accessed without her knowledge, without the student’s permission and without any court authorization.
The lawsuit alleged, among other things, that a UO administrator in December accessed information that the student shared with Morlok in therapy sessions — in violation of state and federal privacy laws — to prepare against a lawsuit. Those records contain details about the victim’s personal and family life that are not related to the case, the lawsuit said.
In related news, the response from Dana Altman and UO to the allegations from “Jane Doe” is here. Altman is still claiming that he had no clue that Austin had been suspended at Providence for sexual assault, and now Austin’s mother is backing that rather difficult to believe claim. (See end of pdf). Sami Edge has more in the Emerald, here:
“We are heartbroken about this case and regret being in litigation with one of our students,” Tobin Klinger, a university spokesperson said in a statement. “We stand by our recruiting processes and support services to students.
The first part of that is pretty shameless, and the second part pretty questionable, Klinger. Even Gottfredson’s hand picked review panel agreed that athletics recruiting and support services needed some work.
This administration is run amok.
The picture attached to that HuffPo story will probably generate a quicker reaction to the story than the story itself.
How vile that the university over and over forces people to make the choice between “loyalty” and what they know in their hearts to be ethical behavior. Stokes and Morlok are to be commended for having the strength and courage to speak out anyway. Their professional integrity stands in sharp contrast to the self-serving disingenuousness of Johnson Hall and the athletics dept.
The UO response asserts three legal bases for accessing the student’s records (p. 14, linked from the bottom of the RG article). Two of them are related to the fact that UO is being sued and needs to defend itself. However, the first one they list reads as follows, in its entirety:
“Counseling records maintained by a University Counseling and Testing Center are governed by the Family Educational Rights and Privacy Act, which allows Oregon to provide the records to its attorneys.”
I find that chilling. They seem to be saying that if a student goes to the counseling center, all of the records – the therapist’s notes, treatment plan, whatever – are treated like educational records, not medical records, and I guess can just be passed around to whoever works for the university and says they need to see them.
If that is really the university’s claim, that is going to do massive damage to students’ trust in the counseling center.
In the Huff Post it states that the UO said “There are multiple legal bases for Oregon to collect and review plaintiff’s counseling records,” the university stated in its court filing. The filing noted that Doe’s counseling records are governed by the Family Educational Rights and Privacy Act, “which allows Oregon to provide the records to its attorneys.”
Really, I thought it was an educational right to know or complying with a subpoena?
Are doctor client privileged notes for psychology counseling an educational record? Even if someone came up with some tortured yet acceptable definition here that they are educational records, under what reasoning does your LAWYER or more correctly the subcontracted lawyers you hired to sue the student have an educational right to these records? remember educational right means you can only use them for an educational purpose. Since you are trying to sue a student IT DOES NOT COUNT. AND even then, to use them for legal proceeding YOU NEED A SUBPOENA, that you can comply with to release the educational records AND EVEN THEN these records would still be covered by HIPAA. And if you clear HIPAA guess what YOU NEED a SUBPOENA.
And perhaps, just perhaps you are allowed the records as part of discovery or document production in Oregon: IN NO WAY DOES THAT GIVE YOU THE RIGHT TO GO INTO A DOCTORS OFFICE AND STEAL RECORDS! You need to follow the rules and request the records.
Well, I guess that means tuition is going to go through the roof to pay for yet another JHCF!
And just for the record: NO NO NO NO in NO WAY does FERPA allow your lawyers to access medical records.
At UO, FERPA stands for Find Embarrassing Records? Protect Ass!
HIPAA has a partial exception for records covered under FERPA. But, the situation is a bit more complicated:
-> FERPA does not allow disclosure of “educational records” to attorneys. Indeed, FERPA only allows internal disclosure to school officials for “legitimate educational interest.” The UO lawyers are just wrong about that one.
-> HIPAA does not cover educational records (45 CFR 160.103). But, medical records maintained by a school are not “educational records” under FERPA but rather “treatment records” so long as they are not provided to other parts of the school (see 20 USC 1232g(a)(4)(B)(iv)). This is really a technicality, because as soon as they get sent to anyone else they become educational records. Thus, I think the cleanest reading of the law is that the disclosure violated both HIPAA *and* FERPA. That said, the federal government has issued some pretty confusing guidance on this issue.
-> The UO health center accepts insurances AFAIK and is thus a “hybrid entity” covered by HIPAA.
-> Having it be a FERPA thing instead of a HIPAA thing is not in the schools interest (since it risk our federal funding) but it is in administrators interests because violating HIPAA caries heavy prison terms (1 year for unauthorized disclosure, 5 years when it is done under false pretenses like apparently in this case, 10 years if it can be proven that there was intent to harm).
-> Even if they get out of the HIPAA problem, it still looks like UO lawyers and administrators violated multiple federal laws. In particular , the UO counseling center privacy policy says “information about your therapeutic work, or the fact that you have sought services is released to anyone without your written permission (except as noted below under exceptions). This includes your parents, roommate, spouse/partner, and university personnel.” And has no applicable exceptions. That makes me think this is a “materially false statement about health care benefits” and thus subject to five years in prison under 18 USC 1035 and probably other federal anti-fraud laws I am not thinking of at the moment.
-> Beyond the question of federal law, the disclosure of medical records is a violation of professional standards and could cost everyone in the counseling center their licenses
-> The letter alleges that a UO official (an attorney?) told the counselors that they were prohibited from seeking outside counsel. IMO, that could probably get which ever attorney said that disbarred (see bar ethics rules 1.13(f) and 4.3).
I would not want to be in the position UO administrators are in right now. They need really deft legal work to stay out of prison at this point, not to mention any chance of surviving a major lawsuit. I personally would not want to rely on the tainted personal of the GCs office in a situation like this.
Why Coltrane hasn’t put everyone in the chain of command on administrative leave yet I don’t know. I think the people in Johnson Hall think they can make this go away on technicalities. They might be correct. They also all may end up in the custody of the Federal Bureau of Prisons though, and so should really take some more dramatic action.
Why do things like this keep happening to this school? We really should have a base level of competence in our administration such that we don’t have to start talking about the possibility that a major chunk of our schools management will end up in federal prison.
There is bad administering (as in the strike, CAS funding, etc) bad business management (the athletics department which doesn’t turn a profit) bad lawyering (geller senate memo) and bad PR/institutional oversight (bowl of dicks-gate/redact-gate/archive-gate/anti-harbough-ism). All of that I guess I can handle. But, like, I shouldn’t have to wonder if my university president is going to go to prison.
Usual disclaimers: nothing in here is legal advice. Any speculation about criminal law is speculation only based on facts which have been alleged but not proven in a court of law.
What if–UO has the distinction of being the first university ever to lose its federal funding because they violated FERPA?
Well, you know we have that GREAT new slogan “WE IF,” so I guess trying out loss of federal funding is righ tin line with our aspirations?
Yup
FERPA excludes four categories of information from the term “education records” including
(iv) records on a student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity, or assisting in that capacity, and which are made, maintained, or used only in connection with the provision of treatment to the student, and are not available to anyone other than persons providing such treatment, except that such records can be personally reviewed by a physician or other appropriate professional of the student’s choice.
20 U.S.C. § 1232g(a)(4)(B); 34 CFR § 99.3 (“Education records”). These are commonly known as “treatment records” of eligible students.
http://www2.ed.gov/policy/gen/guid/fpco/ferpa/library/baiseunmslc.html
In the last few months, the interim general counsel has really burnt the cookies. This is a university run by a spiteful GC and a bunch of PR folks paid to project a facade over the dismembered academic community that results from their hard-headed counsel. Faculty have been told to never cross the moat into fort. Not healthy. A serious housecleaning of the GC was needed over the summer and because Coltrane did not do it, the dismembering continues.
This is where the UO administration crossed that line between everyday villainy and cartoonish super-villainy.
UO cites Oregon law in defense of its snooping into student health records that are protected from disclosure by federal law. Hard to imagine that argument will be well received in federal court.
We appreciate that you can see the forest for the trees, perhaps better than most, but please help us understand the basis for your ability to call balls and strikes in federal court?
Where there is a conflict, federal law trumps state law. That being said, I don’t think this case will ever see a judge’s decision on the merits. I’ll leave to the student the derivation of that formula.
Not sure which laws you believe may be in conflict, but your analysis would not survive a Conflicts of Law exam question, let alone the Bar Exam. In fact, it would not pass Wikipedia muster. Ever heard of preemption analysis? Federal judges typically consider arguments that present numerous rules of statutory construction and interpretation, not just the one you noted. But then your comment is akin to many under this item. The best comments begin with “not a lawyer” but then regrettably insert self-serving Naked Assertions.
A Tublitz editorial commenter captured Eugene culture well “laid-back, outdoorsy counterculture and a history of sometimes radical social activism” or simply put, stuck in the 1960’s.
https://www.youtube.com/watch?v=3zu50CfdTnI
The ‘Record King of Eugene’ confirms when recently paying homage to “the attorney who kept Nixon’s public died last week.” Planet Eugene lives in a pre-Copernican delusion that it is the center of the universe. And UO? Well, Oregon was the first state to legalize assisted suicide.
This comment took a strange turn just after the first paragraph.
In answer to Naked Assertions inquiry to “please help us understand the basis for your ability to call balls and strikes in federal court,” see pages 2 and 3.
Apparently not so strange, as noted by UOM:
In this poisonous cauldron of self interests, the fabric of the UO as an educational institution is being destroyed. Paul Omundson, RG Op-Ed 2/22/15
This isn’t just a “sad” day for Oregon, it’s a depressing and appalling day. For the first time in 34 years, I’m ashamed to be an Oregonian. Priscilla Southwell, UO faculty, RG letter 2/15/15
Assisted suicide sounds about right.
You all should have gotten your call for award nominations.
http://hr.uoregon.edu/work-life-resources/recognition/outstanding-classified-employees-and-officers-administration-recog-0
Know any leaders that were willing to risk their jobs to stand up for what is right? How about Jennifer Morlok?
Seems the Student Press Law Center is siding heavily with the UO here. But don’t take it from the lawyer, take it from the professor with an axe to grind.
http://ferpafact.tumblr.com/post/110654798981/u-of-oregon-denies-it-violated-students-privacy
SPLC Reader — I took a look at the referenced page — if I’m reading it right, there’s a sort of Catch-22 at work here. The UO central administration appears to have the right to access the student’s counseling records under FERPA 99.31(i)(9)(3)(B):
Crap — need help with html tags.
No. “Disclose to the court” is distinct from taking confidential records from the counseling center and giving them to an attorney without notifying anyone. Also they are not “education records” but “treatment records”. And, the UO can’t violate its own confidentiality policy which is (or was) clearly posted on the counseling centers webpage–doing so is breach of contract and possibly felony fraud.
Thanks, post updated.
Handy guide to FERPA vs HIPAA available here : http://www2.ed.gov/policy/gen/guid/fpco/doc/ferpa-hipaa-guidance.pdf
A bit dated (2008), however, according to it, SPLA may be right.
Then again…maybe not. Courts often force agencies (and institutions) to revise rules and policies when those rules and policies are not in line with the overriding intent of the original legislation. This could be one of those cases.
It appears the student’s records were obtained without her permission (or the cooperation of her counselor) before her suit was filed, not after. We need a good timeline of events in order to see if this was legal.
Focusing on the legal aspects elides the larger issue.
The admin here accessed a student’s counseling records in order to protect themselves, then email blasted the entire campus about how they had gone to great lengths to protect her.
The chilling effect this could, and likely will, have on future efforts to report and pursue complaints of sexual assault, especially when athletics are involved, is immeasurable.
What this administration wants is not a campus free of sexual assault; they want a campus free of reports of sexual assault. This latest episode has gone a long way towards giving them what they want.
You’ve nailed it.
That’s easily comment of the year (so far), so give the Working GTF a coffee cup – and any other swag you’ve got lying around…
(Please and thank you.)
This is so interesting. Was the lawsuit filed before the records were accessed and did those records make it to the court?
OK lets say FERPA allows the disclosure (though I will disagree with my tiny little layman brain that this case is that clear).
http://www.law.cornell.edu/cfr/text/34/99.31
Does Oregon law have anything to say about this? If FERPA allows the right to disclose, does it also grant absolute authority to disclose in this one case? Is FERPA really meant to allow the university to take medical records without the involvement or even knowledge it seems of the patient or the attending doctor who did it seems disclose these records? Are the records still not Medical Records? And therefore deserve protection? If the student went to a private practice off campus how would the records have been accessed and why should it be different for a healthcare provider who is housed at a university?
http://studenthealth.oregonstate.edu/general/policies-and-guidelines/patientstudent-confidentiality
http://statelaws.findlaw.com/oregon-law/oregon-medical-records-laws.html
Perhaps if we are lucky the UO will be party to another SCOTUS decision!
I wonder if any acting on behalf of the university offered these services to her with implied or explicit conditions of fairness and confidentiality. Then the same University harvests these records for their own use…
Oh my, I do not even know if the police can do that? Can they? Say a person in the Oregon State Prison have ‘something bad’ happen to him. The warden expresses great concern and tell the inmate to visit the shrink to get some help. Can the warden then go steal the files without the shrinks knowledge and read them to help him defend his case with things like victim blaming and irrelevant info to smear the inmate to guarantee his bonus that year… er I mean protect against a lawsuit? I assume this is actually could be the case in Oregon, but wouldn’t it be ironic if inmates have more protection over their health records than students? On second thought not really, as I think Oregon pays more for corrections than it does for its seven universities.
Yep. Not the spirit of the law, but (alas) the letter of it.
So what dopes a human university do — it gets a student patient’s written consent before giving treatment records to someone in the University who has other motives than treatment.
So what does a humane university do — it gets a student patient’s written consent before giving treatment records to someone in the University who has other motives than treatment.
For example, Emory University explicitly says, in published policy, the following:
“Can my Student Health and Counseling Services treatment records be shared with people other than healthcare providers without my consent?
“In general, we will ask you to sign a written consent before we disclose your Student Health and Counseling Services records to anyone for a purpose other than treatment. In the following circumstances, as permitted by FERPA regulations and Emory University policy, we may disclose your Student Health and Counseling Services records without your written consent: (a) to comply with a judicial order or lawful subpoena; (b) disclosure to the court in connection with a legal proceeding involving the University and you or your parents; and (c) disclosure in connection with a health or safety emergency if knowledge of the information is necessary to protect the health and safety of you or other persons; The FERPA regulations also list other situations in which we may disclose your Student Health and Counseling Services records without your prior written consent.”
http://studenthealth.emory.edu/hs/about/ferpa.html
How does this compare to UO policies? Go and read OAR 571-020-0180. “When Prior Consent Is Not Required for the Disclosure of Personally Identifiable Information from Education Records”
UO says that yes, they may have pulled the records before any lawsuit is in place. But it’s ok, they swear they didn’t actually read anything until after the lawsuit.
For me the really crazy shit is that UO is countersuing the (alleged) rape victim. They argue that since the victim is lying about being raped, it discredits actual survivors, leading to less reporting. They push this logic to the extreme and conclude that making an example out of this woman will actually encourage reports from “real” victims. True story.
Did I miss the countersuit in the court filing? Can you point us to some paperwork that says that? It’s not that I don’t believe it–that’s the sad part–but I’m wondering why I haven’t heard of it until now.
From the RG article the other day:
“Also on Monday, the UO filed a response and countersuit in federal court, claiming the alleged victim’s suit is “frivolous, unreasonable and without foundation,” and asked the court to dismiss the suit and rule in favor of the UO. The university is asking that the student, or her attorneys, pay what the UO has spent in attorney fees and other costs related to the case.”
http://registerguard.com/rg/news/local/32755990-75/uo-therapist-alleges-potential-illegal-behavior-in-student-lawsuit-case.html.csp
It is my (non-legal-minded) understanding that countersuits are common when being sued, but this still seems like it’s in very poor taste to sue the student for the university’s legal fees.
The countersuit is a part of the UO’s “answer” to the plaintiff’s complaint. The UO is suing plaintiff for its attorney’s fees. That’s a threat designed to force plaintiff to dismiss or settle for a nominal face-saving sum, i.e., enough to pay her attorneys for drafting the complaint.
I have not seen it but I think the school is asking for attorney fees and that is pretty standard. I think it was advertised as a countersuit but it might be nothing more than the request for attorney fees.
From UO’s countersuit:
“Here, the publication of false allegations about Oregon’s handling of a report of an alleged sexual assault creates a very real risk that survivors will wrongly be discouraged from reporting sexual assaults and sexual harassment to Oregon, in direct contravention of the goals of both Title IX and Oregon. Conveying the facts about how Oregon properly handled plaintiff’s case is necessary to demonstrate the high priority Oregon gives to honoring the rights guaranteed by Title IX.”
They directly threatened the woman’s attorneys, saying if she doesn’t have any money they will squeeze it from her lawyers. All in the name of increasing reporting, in some way I don’t begin to understand. It should not be minimized that the UO was able to get a player’s mother to switch sides on this case. She went from saying, “we told them everything” to now saying “…except about the prior sexual assault case.”
I defy the GC to produce a single shred of peer-reviewed research that in any way, shape, or form backs up this risible assertion.
Can the UO Senate file an “Amicus Brief” on behalf of Jane Doe?
Jesus! Don’t you even read the documents that UOM prints? The countersuit isn’t about the “rape” at all, it is about the suit against the UO for Altman “knowingly” bringing a sexual predator to campus. These are two different cases. Come on people, be the smart professors and researchers you are supposed to be rather than a lynching gang.
GC is out of hand. The law is no longer about the law, it has become a game where GC sees just how much it can twist and manipulate it to serve their needs. There is no administrator at UO with the courage to do anything about it. These shameful games will keep being played at the expense of us all. It is no longer about doing what is ethical or just, it is now about deflecting responsibility and avoiding “liability.” Too bad they didn’t take a look at what sort of liability they’ve likely created. 3 lawsuits that we know of going on and all seem to have merit. What does that tell about GC? It speaks volumes to me.
To less elegantly restate Working GTF’s excellent comment above, they don’t give a damn about obeying the law, but instead put all their energy into figuring out how to evade the consequences of not obeying the law. It’s a fundamentally criminal mindset that goes way beyond standard lawyering tactics.
If the countersuit is decided in court and a court would follow UO’s arguments, then wouldn’t UO risk more lawsuits by the three former students?
Is that a shredder I hear in the GC’s office?
Two of the players are already playing at other schools, and UO worked out a deal with one player’s mother.
Was the deal with the mother in the news or can you elaborate?
If the two players are not making it to the pros, they have nothing to lose anymore. There are already lawsuits by alleged students at other universities.