Unfortunately, many school districts have been notified that students in the district have tested positive for COVID-19. Such notifications have led to questions as to what obligations districts have to notify staff and students and what can and cannot be disclosed in the event a notification is made. The United States Department of Education’s Student Privacy Policy Office issued a guidance document on the intersection of personal privacy information (“PPI”) and the current COVID-19 crisis (“PPI Guidance”) this past week.[1] This alert provides the firm’s analysis of these issues.
Unless the district is ordered to notify individuals regarding the health status of a student, there is no obligation to do so. That means when the district is notified of a student testing positive, unless the County or State Department of Health requires you to send out information to your community, you may choose to not release the information. At present, the understanding of the firm is that the County Department of Health is only requiring notices to be sent if the student tested positive and was symptomatic while in school. The PPI Guidance allows for this type of required notice, as it allows for the disclosure of PPI to parents of other students if parents need to know this information to take appropriate action to protect the health of their own children. The PPI Guidance indicates that such disclosure should be the “rare situation” and done “in conjunction with health, law enforcement, or other such officials.”
Even if there is no notice required by the County or State Department of Health, we of course understand that there may be reasons why a district would want to make some information available to the community. If a district chooses to send out a notice, we advise the following:
- The notice should not identify the student by name, nor should the notice be written in such a way so that the student can be identified by the community. According to the PPI Guidance, the information in the notice should be in “non-personally identifiable form.” The Department of Education cautions that districts “ensure that in releasing facts, [you] do so in a manner that does not disclose other information that, alone or in combination, would allow a reasonable person in the school community to identify the students . . . with reasonable certainty.”
- There should be targeted release of information. If the student who tests positive is in an elementary school and she has no siblings in upper grades, the notice should only be sent to the staff and families of the elementary school where she was a student.
- If the parents are willing to voluntarily give you consent to release their child’s name to other families to allow for more detailed information to be provided, you could notify a particular class roster of the positive test, even if the student was not symptomatic at school. The PPI Guidance has a form that would allow for such consent. However, a district cannot require a parent to complete the form.
The attorneys at Keane & Beane will be available to review any notices you wish to send to your community and to answer any questions you have regarding such notices. Please contact Stephanie Roebuck or any of the Education Law attorneys you work with regarding these issues.
