4/9/2015 update: All the Tim Clevengers and Tobin Klingers in the world can’t put the UO administration’s broken credibility with the press back together again. Apparently Scott Coltrane can’t either. The Oregonian editorial board’s stinging rebuke to Johnson Hall on their counseling confidentiality debacle is here. Read it all.
4/8/2015: Doug Park and Shelly Kerr dismantle Provost Bronet’s counseling confidentiality promises
Who’s in charge? The Senate voted a month ago to make Park give back the records. Bronet then promised in an email to campus that:
In order to emphasize the university’s commitment to the confidentiality of students’ records I am announcing the following actions:
OGC has returned all records at issue so that they may be preserved and secured by the UCTC.
I am instructing all UO employees that they must rigorously respect the confidentiality obligations of therapists in UO clinics and counseling centers.
The university promises each student who comes to UO clinics and counseling centers that, consistent with law and ethics codes, in the future no records will be accessed by anyone not involved in their care, unless:
the student signs a written release,
a court orders release,
the therapist needs to coordinate treatment with others,
the therapist needs to prevent harm to the student or others,
the therapist needs to provide anonymous, aggregate information to the Director of Affirmative Action to compile statistics regarding sexual assaults.
I urge UO students to use our counseling and mental health services without fear that their counseling records will be disclosed to other parties or UO departments.
But today Rich Read is reporting in the Oregonian that this is not what’s actually happening:
University of Oregon Provost Frances Bronet acted decisively last month after the school received nationwide criticism for accessing a rape survivor’s therapy records for a lawsuit.
Bronet assured students in a March 20 memo that UO’s counseling center would keep records confidential barring extraordinary circumstances. She urged them to use university mental-health services without fear.
Meanwhile, The Oregonian/OregonLive has learned, the head of the University Counseling and Testing Center significantly weakened confidentiality safeguards in a policy statement she wrote with UO’s legal department.
Director Shelly Kerr wrote in an internal April 3 email obtained by the news organization that she worked with university attorneys to draft the new confidentiality policy. “I want to be sure that the information on our web and printed materials are as clear and accurate as possible,” she wrote.
But the new policy, already in effect, contradicts promises Bronet made and greatly expands the number of exceptions that could be cited as justification to break confidentiality. Multiple changes to the former policy include elimination of a requirement for written permission from a student to release information, a step that Bronet described as mandatory….
Here’s that new policy. Complete with a typo:
This substantially weakens privacy pledges, in these ways:
- Requirement that client permission for disclosure be “written” is deleted
- Promise that no information will be released is change to no release “outside the UCTC,” allowing unlimited access to confidential therapy files within the UCTC (which is what happened when Shelly Kerr accessed the files on Dec. 8)
- Specific promise not to release counseling information to “parents, roommate, spouse/partner, and university personnel” is deleted.
- Instead of a confined list of exceptions, new policy says the “main, but not only” exceptions are listed – providing an open-ended possibility of disclosure and sharing of private information.
- Instead of listing specific, limited exceptions, the “main, but not only” phrase is followed by examples that “may arise in situations involving” – a much looser formulation of language.
- The previous policy provided that a written release would cover only “specific information” identified in the release. The new policy deletes that limitation to release of only “specific information” (and deletes that written process that would have assured that limitation).
- Instead of “imminent danger” to self or others justifying release of confidential information, the new policy only requires “danger.” “Imminent” has been deleted.
- Instead of just “court order” as a ground for breaking confidentiality, the new policy also provides that any “subpoena” can be such a ground – which means subpoenas written by a lawyer without court supervision. This means that the client may never have the chance to challenge the subpoena in court before the UCTC has already released the files to the lawyer who wrote the subpoena.
- There is a completely new ground for release, namely whenever a patient has filed a suit or is defending one and “emotional condition” is used “in a legal situation.” This creates two enormous loopholes:
- Any time a person’s “emotional condition” is a legal issue – even if it does not involve the counseling center causing the emotional condition – the student’s records can be released. This is contrary to normal court practice.
- The release can occur even before a suit has been filed. This would justify what was done on Dec. 8 – release of records before the suit was filed in January. So this is an after-the-fact policy seeking to cover somebody’s ass.
- A new provision allows routine sharing within UCTC and not only for case consultation or supervision of staff; those are given only as examples, with the word “primarily” justifying other, unstated sharing within all staff of UCTC. This, of course, is another after-the-fact exception that will help cover somebody’s ass, since Shelly Kerr’s decision to gain access to the student’s records was not done for case consultation or supervision of staff.
- The requirement that sharing information with others be only done “in accordance with Oregon law” is changed. Those words are deleted, allowing wider sharing.
You kept Shelly, and let her get rid of Karen Stokes. What did you think was going to happen next? Are you gonna keep letting Doug run this University or were you planning on getting in there and leading once in a while?
This is the worst kind of disingenuous, bait and switch, $%^!
The provost publicly announces the new rule while the world is watching, which gives the rights and protections reasonable Americans expect.
Then the two people who are party to the incident that brought all this terrible attention to our institution and our state not only rewrite the existing law but make it less protective of our rights.
PLEASE! There are many in the nation and the state that are watching. The Oregon legislature is in session. If you have never contacted your state representative now is they time. They may still be able to write a law that respects basic human rights. Contact the new governor, she should be on the side of these rights. Contact your US representatives, point out the Oregonian story, which clearly shows that these two people intend to defy not only what is decent but also what they themselves think is correct.
Tell your friends and family on social media and in person that we are tired of this $^&#!
http://governor.oregon.gov/
http://www.oregonlegislature.gov/house
http://www.leg.state.or.us/senate/
http://bluebook.state.or.us/national/reps/reps.htm
http://www.merkley.senate.gov/
http://www.wyden.senate.gov/
Well, this is me looking surprised. FWIW, the Oregon legislature is chugging along with HB3476 but it’s a band-aid solution too. The real problem here is FERPA. Until FERPA gets rewritten as a real law, universities are going to continue to pull all kinds of crap with records of any sort. Flouting medical privacy is just the tip of the iceberg.
What’s particularly strange about this is that Scott Coltrane sent a letter in support of HB3476, specifically referencing the Bronet memo that he’s now decided to ignore.
And this is why FERPA needs to be rewritten with teeth and with greater precision, even though Congress usually leaves such details to the states. Universities–and state universities in particular–have way too much control over state legislatures (“partnership,” anyone?) to allow modifications that would substantially limit universities’ abuse of discretion in implementing FERPA.
FERPA is supposed to be about protecting students, a highly vulnerable and comparatively powerless group whose rights and needs are not specific to any state. That’s a job for federal law. Good federal law.
Just Different,
This is why we all need to contact the legislature to make sure strong Oregon laws are put in place now. The bill can be re-worked and amended before passage so time is critical.
As I understand it regarding FERPA that disclosure is permissive as in the information CAN be disclosed under FERPA for the prescribed reason! FERPA is NOT prescriptive, it does not say this data SHALL be disclosed under these circumstances… Perhaps federal litigator would clue us in.
“May” is permissive.
Whether right or wrong, FERPA provides an exception “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution *may* disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” 34 CFR 99.31(a)(9)(iii)(B). Elected representatives *may* and perhaps should debate and amend FERPA, but until then, this regulation remains good law.
Remember, all parties in Jane Doe v. UO and Altman are entitled to due process and equal protection under the law. Discovery rules apply to all parties and are very broad and liberal. Jane Doe has the burden of proof. I renew my March 31 offer to dialog with UOM regarding his request “can you cite the law that says it was illegal for me to post Randy Geller’s memo on the web?” That dialog begins with the definition of confidential communication under Oregon Law, but first we need a few ground rules. Will you answer my questions directly and respond thoroughly to the concerns of your readers?
There’s a big difference between an educational record and a medical or counseling record.
Apparently, FERPA includes in its definition of an educational record “Medical and health records that the school creates or collects and maintains.”
So maybe it’s legal, maybe it’s Memorex.
And maybe it’s time to redraft FERPA. Not to be a broken record.
“Someone From the Library” got it right, see HHS – DOE Joint Guidance FAQ:
11. Are all student records maintained by a health clinic run by a postsecondary institution considered “treatment records” under FERPA?
Not all records on eligible students that are maintained by a college- or university-run health clinic are treatment records under FERPA because many such records are not made, maintained, or used only in connection with the treatment of a student. For example, billing records that a college- or university-run health clinic maintains on a student are “education records” under FERPA, the disclosure of which would require prior written consent from the eligible student unless an exception applies. See 34 CFR § 99.30. In addition, records relating to treatment that are shared with persons other than professionals providing treatment to the student are “education records” under FERPA. Thus, to the extent a health clinic has shared a student’s treatment information with persons and for purposes other than for treatment, such information is an “education record,” not a treatment record under FERPA.
For more information see http://www2.ed.gov/policy/gen/…
What caused the conversion of treatment records into education records? Consider:
1) Jane Doe’s summer 2014 discussions of her condition and disclosure of record content to her attorneys Clune and Middleton. [No, because this conversation is protected by attorney – client privilege and work product rules, but if we grant her that (and we must), we must also acknowledge the same applies to the May 17, 2012 Geller memo.]
2) August 6, 2014 letter from attorney Clune asking that UO secure and produce all documents that relate to the then-pending federal civil rights lawsuit against the UO.
3) The September 2014 filing of notice tort claim by attorneys Clune and Middleton.
Did any of these acts, solely or in concert, constitute “sharing a student’s treatment information with persons and for purposes other than for treatment?” Absolutely.
In discussing the recent UCTC clarification of confidentiality, Law Professor John Bonine urges us to believe it was wrong for UO to secure and produce documents requested, stating
“…documents will be given before a lawsuit is filed and that is definitely not… its …ah. You can’t say, I think that somebody is going to sue me, therefore I get to get my opponent’s documents. That doesn’t happen.” [April 8, 2014 Senate Meeting 36:00 – 36:12]
John is wrong. It does happen in a justice system in which all parties are entitled to due process and equal protection under the law. Jane Doe, by and through her attorneys, knowingly, intelligently, and voluntarily sought documents from UO and gave UO notice of a pending lawsuit, months before Park secured the records.
John had a number of other valid points. For example, describing himself as “those of us who look at the law” because his Oregon Bar status is inactive. That means he is a member of the Oregon Bar who has “chosen this status voluntarily and may not practice law in Oregon.”
I’m ashamed to admit that my money is going to tuition at the UofO and, in a totally unintended way, supporting the crazy cultue down there. Can’t anyone in power there see how badly they’re behaving? This is just one more example of an administration gone amuck.
And the clown show continues. Can’t wait for the main act when we find out who they will put forth as new presidential material.
This is despicable. Bait and switch, indeed. The administration is so clueless to think that no one is watching, Instead of true leadership to make things right, they attack those that point out one misstep after another. Could they just go a week without an embarrassing crisis that drags the UO through the mud?
You all realize the administration had nothing to do with this, right? Complete backdoor move on them.
I believe it, but it’s up to them to get the wolves out of the henhouse. Coltrane has no right to expect trust from anybody if he isn’t going to make sure he puts a stop to the toxic cycle of shaft, spin, repeat.
A “complete backdoor move” by the administrations OWN LAWYERS? If this is true, the admins look stupid and asleep at the wheel. If this is a lie, the admins look the same as they’ve been looking for quite a long time.
Have you heard that Karen Stokes was named Officer of Administration employee of the year? The ceremony is on Tuesday, but, oddly, the university-wide announcement hasn’t gone out yet.
I’m no public relations expert but a better message from uO leadership would be, “We’ve looked at the law and this is totally fucked up. So, until FERPA is fixed and to assure student privacy, uO will cover counseling expenses at a private off-campus location.
We could be heroes instead of chumps.
This presupposes that the admin are interested in reducing the actual number of sexual assaults on campus; they are not.
Instead, they wish to reduce the number of *reported* sexual assaults on campus.
They accomplish this by two means: first by intimidating victims with the publication–even in a “limited” capacity; second by punishing those survivors and their supporters when they push pasty (1).
The behavior of this administration is shameful. Those who persist is promoting sophistical justifications of their actions in the comment section here are complicit.
So the question is simple: do you wish to promote a campus where rape is normalized, or do you not?
How you answer tells much.
I hate to be the defender of “the administration,” but if I am reading their explanation correctly, this update was simply to clarify the existing policy, under which the GC can access students’ records at his leisure. This was merely a communications update, not a policy update, and was not meant to replace to policy update that Bronet promised.
I could be wrong, but to me this sounds like this update was to let students know that they weren’t yet protected, and when the official policy is updated, I expect the website to be updated as well.
…I hope.
I hear there’s a bridge in Brooklyn that’s up for sale, too. Everything about this story smells a little off, and I’ve learned to trust my nose when dealing with UO administrators.
– Why the changed language with respect to subpoenas and written consent?
– Why rewrite the policy at all right now to “let students know they weren’t yet protected”? Does any student feel that anything has been “clarified”?
– Why not add a note explaining what has been “clarified” and/or a note explaining that the policy is under revision, per Bronet’s promises?
Here’s my analysis and prediction: The “clarifications” were made purely in order to justify the December records retrieval; informing students had nothing to do with it. Bronet’s email was a pure PR move, and if that task force ever comes up with a new policy, it will be nearly indistinguishable from the old policy. And then we’ll get a story about how they “couldn’t” change the policy to truly protect student medical privacy. Anyone want to put $50 on this?
Indeed, krantander, that message was delivered by the UO President without ambiguity (as far as I could tell) at the Senate meeting on Wednesday.
Say this is not the real Federal Litigator. Or you had a few too many Scotch up after a successful litigation. This argument does not sound correct given the context of the FERPA guidance you post and has ad hominem attacks adding no value to the argument.
The answer to his question seems simple: Yes, treatment records are treatment records until they are converted to Education records then they become protected by FERPA.
So when a ‘treatment record’ is shared for example because of a court ordered subpoena then the record is no longer a ‘treatment record’ but is still protected under FERPA.
So yes if “3)” is valid and legal. The treatment records would now be protected by FERPA.
“2)” would not convert them to FERPA. Sending a letter, only the action of the university disclosing them would be correct.
“1)” does not convert them to FERPA records the student does not hold the records or disclose them. The student under FERPA is authorized to request all Academic records for review under FERPA. This does not convert a treatment record into an education record. The student could sign and request treatment record. So if Doe discussed the treatment records with her lawyer–probably saying something like those are confidential, that is what the president, provost, university police, and athletic liaison said when the forced me in the front door, in any case and showed me their written policy but It is me telling a therapist how I felt as three men passed me around like a blunt–
Oh I digress. The act must be the university disclosing treatment records for an exception under 34 CFR § 99.30 where the student does not need to be notified. And it is now thanks to the my schools immoral but probably completely legal action that the whole US knows… Thank you.
Dear Rep,
Professor Bonine began,
“I fear… that there may be, in this room, although you may not see it, a certain amount of fear… a certain amount of worry that if we push back on some of the things you have said, we will sound like the same people you have strongly criticized for ahh…, being contentious, being aggressive, being adversarial, so I am going to start by saying I am going to push back that beyond that anyway.” [April 8, 2015 Senate Meeting 27:53 – 28:22].
Professor Bonine encourages “push back” and he may certainly respond for himself if he took umbrage with his Senate testimony and information available on the Oregon Bar Directory. It was not ad hominin. His wrongful comments ignored basic requirements of the Oregon Tort Claims Act.
30.275 Notice of claim; time of notice; time of action. (1) No action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be maintained unless notice of claim is given as required by this section.
(2) Notice of claim shall be given within the following applicable period of time, not including the period, not exceeding 90 days, during which the person injured is unable to give the notice because of the injury or because of minority, incompetency or other incapacity:
(a) For wrongful death, within one year after the alleged loss or injury.
(b) For all other claims, within 180 days after the alleged loss or injury.
The poor judgment and egregious conduct of three young men after a basketball game on March 9, 2014 that gave rise to this claim also started a clock. Jane Doe’s attorneys had to file a Notice of Tort Claim with UO on or before September 5. They did.
Professor Bonine’s emphasis on consent [33:50 – 34:15] is misplaced because Jane Doe provided consent for her attorneys to request UO to secure and produce documents on August 6, then she also gave her consent to send Notice of Tort Claim shortly thereafter. Further consent is not required “If a parent or eligible student initiates legal action against an educational agency or institution, the educational agency or institution *may* disclose to the court, without a court order or subpoena, the student’s education records that are relevant for the educational agency or institution to defend itself.” 34 CFR 99.31(a)(9)(iii)(B). Here, no disclosure even occurred, Park simply secured and produced documents at Jane Doe’s request so her attorneys could prepare her lawsuit. Park represents a defendant placed on notice by a plaintiff on or before September 5 and he may certainly access those documents to advise his client.
Professor Bonine’s comments about “emotional concern” [35:10 – 35:21] are both inaccurate and completely unresponsive to Jane Doe seeking relief for “past, present, and future emotional pain and suffering, ongoing and severe emotional anguish, and loss of past, present, and future enjoyment.”
Bottom line: UO may certainly place a “hold” on records in reasonable anticipation of litigation and counsel may certainly access them in preparing to defend against a known lawsuit that placed the plaintiff’s emotional state at issue. Failure of in house counsel to take these steps would breach a lawyer’s duty to a client and could be legal malpractice. To that, Park notes the risk of court sanctions.
Many have commented that UO actions may have been legal, but imprudent or worse, immoral. If commenters believe in a justice system in which all parties are entitled to due process and equal protection under the law, then UO actions were legal, prudent, and moral. Jane Doe has the burden of proof and UO is entitled to a defense. I again renew my March 31 offer to dialog with UOM regarding his request “can you cite the law that says it was illegal for me to post Randy Geller’s memo on the web?” That dialog begins with the definition of confidential communication under Oregon Law, but first we need a few ground rules. Will you answer my questions directly and respond thoroughly to the concerns of your readers?
krantander
I agree that is exactly what they are saying. So with such a high profile subject, where the United States Congress is taking time out to watch, With the massively bloated little army of communications and outreach specialists, soon to have their own talent agent–er, scout or something…
With all that the did not think to craft a press release and have a meeting or new conference to state just that simple easy little fact?
OK that is fine. If I accept that then there are a whole lot of people that do not need their contract renewed in June.
The press release could have read: Although, we find the current law immoral and repugnant as it assails a common basic right to privacy between a client and patient; the current US law does not follow this common law. Since our amazing legal team uncovered this objectionable loophole, we are working both with the governor and the US House and Senate to pass legislation to close this loophole and return decency and trust to our institution. In the mean time our legal team has redrafted our our privacy policy not only to highlight this odious offense of human decency but also to warn all future potential patients to stay away until this law is fixed.
Our army of communications and spinmeisters are standing by awaiting your call to give you more information on why this is, how we got here, and what can be done to right this travesty.