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Hedya Aryani 10/01/15

To whom it may concern:

Below, we are submitting aggregated questions and requests for clarification regarding the draft “Dear Colleague Letter to School Officials at Institutions of Higher Education, Protecting Student Medical Records.” 

Thank you.

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Comments on August 18, 2015, Dear Colleague Letter on FPCO Dear Colleague Letter: Access to Medical Records

• Can attorneys access the records if the campus client needs advice about the records themselves, not any claim by a student?

o For example, a campus medical provider seeks advice from counsel on reporting a colleague to the Medical Board.

• Is the ban on attorneys accessing records after litigation begins or before any litigation has started?

o What if attorneys have accessed records prior to litigation and then litigation commences?

o What is litigation? A Title IX hearing on campus? An NCAA matter? An OCR response? Another administrative proceeding? How does the institution access the records in a venue without subpoenas?

• If a student is reported as a threat to others, can legal counsel review medical records in the course of providing legal advice on appropriate next steps?

o On page 5, there is a list of “appropriate parties” to assess a threat. Is this an exclusive list? If so, this seems to be an encroachment on a university’s right to assess a threat using its own judgment. Attorneys and other administrators may also be called upon to perform threat assessment.

• Similarly, in the course of advising on appropriate reasonable accommodations can counsel review medical records or receive information from the medical records of a student, e.g. diagnosis information?

• Is the definition of “medical records” limited to records in the custody of university campus health and counseling centers, or would it include any education record with medical information, such as the records of an accessibility resources office?

o Would the definition cover records that a student provides to the nonmedical offices of the University, such as doctor’s notes given to coaches or professors?

Hedya Aryani