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Records Management

By: Brian Van Brunt, M.S., Ed.D.

We recently received a question from a member school whose counseling center was getting some push back on using Titanium instead of their recently purchased case management tracking system. Titanium is a database and scheduling system developed by counseling center directors to house confidential/privileged records. Other databases used in retention, BIT, academic support, and ADA/504 often hold FERPA records, which are different. There are several arguments for a counseling center to use a system like Titanium over the existing case management or retention system for the BIT/CARE team. These are outlined below:

1. The type of information kept in the record systems used by conduct, the BIT, academic support, etc. is guided by FERPA standards in terms of records management. Counseling records kept in a clinical counseling treatment program fall under confidentiality or privilege. There are times where the term confidential is used to describe information that is private, often leading to those outside the medical and counseling profession to blend the two concepts. These terms are explained in greater detail later on in this post. Best practice in higher education dictates separate data systems to hold these different kinds of records. When they are combined, there is a much higher risk of confusion, access issues, and the chance for expensive (and legally exposing) errors that will be costly to the institution.

2. This is particularly true when a college or university is launching a new clinical treatment program or has other support and counseling programs on campus that are different than the clinical treatment program. There is a need to clearly differentiate records from the non-clinical support and the clinical counseling programs – a separate database is required. Blending the records will cause many problems related to information sharing and administrative access and will complicate how students see their records. Clinical treatment records are not case management records. They are different and have a need for separation and protection.

3. Titanium was designed by counseling center directors for exactly this purpose. It allows for robust summary reports, supervision monitoring, and incudes a national standard in counseling intake (allowing for benchmarking data with other similar institutions). Titanium also has a scheduling functionality that may not be available in other systems. If it is available in another system, this scheduling will likely be viewable to a wider group, violating state laws regarding counseling records.

4. The most pressing argument, however, is that using a primary FERPA-based system would provide optics showing a college or university out of step with national practice. An off-label use of a case management database or other similar program shows a lack of dedication, and will raise eyebrows at other institutions and within the courts as a poorly planned fiscal shortcut that should be avoided. This will also be an issue in the future if the counseling center chooses to apply for IACS accreditation standards, which require a separate system geared around privilege and confidential processes, rather than records that are merely private.

We often see college and university staff not as familiar with clinical records, but rather FERPA records that cover financial, student tracking and retention, and course information. While the push to have the counseling center use the existing case management software was simply a reasonable request to improve efficiency, reduce cost and offer scalability of existing platforms, the blending of the two types of records would create significant challenges and liabilities. The clinical records kept by the newly formed counseling center require a different system to manage these records.

To assist in understanding privacy, confidentiality, and privilege, the following is taken from the 2018 NABITA Whitepaper, The Role of the Counselor on the BIT.

Private information, in a higher education or school context, is information protected by the Family Educational Rights and Privacy Act (FERPA).1 Private information can be shared internally when there is a legitimate educational interest, often referred to as a “need-to-know.” Private information can be shared externally when an exception to FERPA is met, such as in cases of emergencies, dependency, and consent. FERPA protections extend only to records kept by college officials in a written or recorded medium.

Information you learn of or know of from in-person interactions that is not made into a record is not protected by FERPA. A right to privacy has also been recognized by the courts outside of statute when there is public revelation of information in which an individual would have a reasonable expectation of privacy. A lawsuit, resulting financial damages, or loss of a professional license could occur from a breach of privacy.

A more protective layer of legal insulation is confidentiality. Confidentiality, whether conferred by statute or ethical codes, is the right of a client/patient to control how information they share with a professional is protected. Because the client has the right of confidentiality, the professional has a commensurate duty to maintain that confidentiality. Confidentiality is most often conferred in the relationship between therapist and client, or between a health care provider and patient. It can also be formed between advocates and victims, or in some states, between athletic trainers and athletes.

Confidentiality is more protective than privacy, because there is no authorized “need-to-know” basis for breaching confidentiality. Instead, confidentiality is bounded by consent of the client or patient, by statute and exceptions to statutes, and by court-made doctrine, as in situations of a duty to warn (e.g., the Tarasoff v. Regents of University of California, 1976 case). Exceptions to confidentiality vary from state to state and can pertain to child abuse disclosures, HIV+ status, elder abuse, substance abuse, and other statutorily- created health or safety risks. Additionally, confidential records may be subpoenaed and/or may be accessible by an employer in the event of litigation. A confidential relationship is often demarcated by the creation of an informed consent that explains the protections afforded by the relationship.

Finally, the most sacrosanct level of protection under the law is that of privilege. Privileged communication is secret and protected from disclosure which can only be pierced by a court order or waiver of the owner of the privilege. Privilege is rarely in play for the BIT, but would readily be found in the relationship of lawyer-client, spouses, journalist sources, and the confessional (though clergy may only have the protections of confidentiality in some jurisdictions). There are many nuances to what kind of communication, even within the relationships described as privileged, can actually be legally protected. There is also some bleed between categories. For example, courts recognize doctor-patient privilege in most jurisdictions, while statutes and ethical codes may also protect the doctor-patient relationship with confidentiality. Additionally, a medical records privacy act (the Health Insurance Portability and Accountability Act or HIPAA) also confers patient privacy. Privilege and confidentiality protect the relationship, whereas HIPAA (and FERPA in a college environment) protect only the records of that relationship.

1 FERPA — Family Educational Rights and Privacy Act.

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