Things keep getting messier in the case of the rape allegations an Oregon student made against the basketball team in 2014. It was first alleged that the school delayed disciplinary action so that the players could participate in the NCAA Tournament. However, things have taken a murky twist now that the school has given access to the accuser’s counseling records from a period where she sought therapy from campus counseling.
This would seem to most people as a direct violation of every HIPAA law known to mankind, but according to Katie Rose Guest Pryal, a former Chapel Hill law professor, Oregon may not be violating any laws with these actions. This is an excerpt from what Pryal wrote regarding the Oregon case in the Chronicle of Higher Education.
Now, you may know that Ferpa applies to most colleges and universities. What you might not know is that, as the FAQ states, Ferpa therefore applies to “the records on students at the campus health clinics of such institutions. These records will be either education records or treatment records under Ferpa, both of which are excluded from coverage under the Hipaa Privacy Rule.” In plain English, college medical records simply do not count as real medical records, at least for privacy purposes.
Although Ferpa provides a slightly different definition for “treatment records” than for “education records,” the difference is, shall we say, academic, because the same disclosure rules apply: “[A] school may disclose an eligible student’s treatment records for purposes other than the student’s treatment provided that the records are disclosed under one of [Ferpa’s] exceptions to written consent.” And one of those exceptions to disclosure with consent? When the student sues the institution.
With this being said, it appears that the university’s use of FERPA means students should be cautious before turning to the avenues a school affords them such a medical and psychological treatment. In addition, many times colleges and universities have invoked FERPA to prevent public record requests, yet Oregon sees no problem is using it to their advantage.
Add to this the allegation laid out in a letter in which Jennifer Morlok, a senior staff therapist at Oregon’s counseling center, says she was told to provide “non-standard care” to the student that “went against my ethical and professional standards.” Morlok says that when she tried to get outside information on how to best treat the student, she was “scolded and my job threatened.” The letter also is signed by Karen Stokes, executive assistant to the director of the counseling center.
Needless to say, I was disappointed with this reaction, especially by specific individuals in Senior Leadership capacities, along with UO Legal Counsel, who began to look out for the “the system” and their loyalty to that system (or is the best guess that I can gather) and neglected the very client/student we were supposed to be supporting.
Two of the accused basketball players transferred to play elsewhere, while the DA never pressed any charges against them. A hearing held by the Oregon director of student conduct did find the players responsible for the rape, however. Meanwhile, no legal action has been taken against any of the accused by law enforcement, and now we see the Oregon in mad dash using any means necessary to cover their tracks.
[h/t Deadspin]