By Peter J. Maher, Shipman & Goodwin – GUEST COLUMNIST

The “Legal Mailbag Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short, law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues. We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg.
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Dear Legal Mailbag:

The typical public school nurse today most likely works with several students with severe and/or life threatening conditions that often require immediate attention. With the popularity and convenience of texting, many parents prefer to communicate via text regarding treatment for their child. For example, one mother of a second grade student with diabetes works during the school day and cannot take phone calls. She requests that the nurse text her with out-of-normal-range blood sugar levels of the student so that they may communicate about the student’s treatment. How is this practice affected by FERPA? Also, can any violation of FERPA be circumvented by the parent signing a waiver?

Thank you,
Vexed by Texts

Dear Vexed

If I were sending you this Legal Mailbag response via text message, I would begin it with a “worried face” emoji.

As an initial matter, it would be prudent to first consult any board of education policies or regulations that may govern the use of text messages by employees for job-related purposes. Assuming no such board of education policies or regulations exist, aside from a true emergency when the school may need to use any means necessary to contact a parent, there are a number of reasons why the school nurse should not communicate with parents via text message about students’ medical needs and treatment.

First, as you contemplate, the use of text messages for such a purpose could implicate the Family Educational Rights and Privacy Act (FERPA), which governs the confidentiality and disclosure of student education records and also provides parents the right to inspect such records. Under FERPA, an education record is defined as a record that directly relates to a student that is maintained by an educational agency (such as a school district) or a party acting for the agency. Text messages between a nurse and a parent about a student certainly would directly relate to that student, and although an unsettled question, one could argue that the nurse, who is a party acting for the agency, could be “maintaining” such text messages. Parents have the right to access their child’s education records under FERPA, and, therefore, a release from the parent would not be necessary to disclose information to the parent about the student. However, responding to a subsequent request by the parent to inspect all of the student’s education records related to the student’s health or treatment would be difficult if many of the records were contained on the nurse’s phone. The concern is then compounded by the possibility that the nurse may not retain the text messages, which might even be automatically deleted after a period of time.

Regardless of the FERPA issues, however, the use of text messages for communication between the nurse and a parent regarding student health or treatment is ill advised. Communication between school nurses and parents about students’ health and treatment should be documented for a number of reasons, not the least of which is the ability to demonstrate that the school nurse acted appropriately or reasonably in a given situation and that he or she (and the district) properly implemented a student’s treatment protocol, Section 504 plan, or individualized health care plan. A text message thread between the nurse and parent could be inadequate for that purpose.

Additionally, as noted above, there may be record retention problems with text messages. In addition to intentional or inadvertent deletion of text messages, phones die or may be lost or stolen; employees retire or resign, taking their phones with them; and employees may be uncooperative in providing access to their text messages. In short, retrieving and reviewing such text messages at a later date may be impossible. In addition, the school nurse likely would not want her phone and texts subject to a subpoena in a lawsuit or administrative proceeding initiated by a parent, which is always a possibility in our litigious society.

Instead, a better solution for the nurse would be to use his or her school district email account to communicate with a parent who requests to communicate electronically rather by phone. Of course, such email communication should always be professional and with an appropriate level of formality. Emails create a clearer record, can easily be printed for a student’s file, and are much easier for the district to review and recover if needed. Moreover, if a parent is able to read and respond to a text message on his or her phone, he or she similarly should be able to read and respond to an email on his or her phone. If immediate communication is desired, the nurse can text the parent (or vice versa) with a notification that he or she has sent an email. In short, it is best for school nurses not to communicate about medical issues with a parent through text messages.