Legal issues
Thosea
2020Lesson03-3KeyAmendsFERPAnHIPAA.pptx1
The 1st, 4th, and 14th Amendments; and, FERPA and HIPAA
Dr. Terry Conkle
Lesson 02
Spring 2020
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The 1st Amendment of the U.S. Constitution - Religion and Expression
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The first of the First Amendment’s two religion clauses reads:
“Congress shall make no law respecting an establishment of religion … .”
The clause is absolute. It allows no law. It forbids more than the establishment of religion by the government. It forbids even laws respecting an establishment of religion.
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The Establishment Clause
The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.”
This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.
It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.
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The Free Exercise Clause
The 1st Amendment's Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals they choose.
Wording in the free-exercise clauses of state constitutions that religious opinion, expression of opinion, and practice are / were all expressly protected.
Protects religious beliefs AND actions made on behalf of those beliefs.
Wording of state constitutions suggest that free exercise envisions religiously compelled exemptions from at least some generally applicable laws (what contributed to the 2018/2019 “measles outbreak?”).
The Free Exercise Clause protects religious belief and expression; and, seems to allow for violation of laws, as long as that violation is made for religious reasons.
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2 “Religion” Clauses in Conflict
Constitutional scholars and even Supreme Court opinions have contended that the two religion clauses are in conflict.
The Free Exercise Clause implies special accommodation of religious ideas and actions, even to the point of exemptions to generally applicable laws.
Such a special benefit seems to violate the neutrality between “religion and non-religion” mandated by the Establishment Clause.
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The Conflict, Explained Further
Historically, the Supreme Court has been inconsistent. When the Court leans toward more accommodation for the Free Exercise Clause, there is greater conflict.
When the Amendment was drafted, it applied only to the U.S. Congress – state and local governments could abridge the free exercise of religion as long as there was no similar provision in the state constitution.
In 1940, the Supreme Court held in Cantwell v. Connecticut that, due to the 14th Amendment, the Free Exercise Clause is enforceable against state and local governments – or that the free exercise of religion is one of the “liberties” protected by the “due process clause.”
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The 1st Court Test Regarding Religion
The United States Supreme Court heard few church-state cases between 1791 and 1946. Until the Civil War and the passage of the 14th Amendment, the 1st Amendment did not apply to states.
In Everson v. Board of Education (1947), Justice Hugo L. Black (on the Court 1937-1971) detailed the history and importance of the Establishment Clause.
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The Establishment Clause Test (1947)
He stated the majority opinion, and itemized the meaning of the “establishment of religion clause”:
Neither a state nor the federal government can set up a church.
Neither can pass laws which aid one religion, aid all religions, nor prefer one religion over another.
Neither can force nor influence a person to attend or remain away from church against his will or force him to profess a belief or disbelief in any religion.
No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion.
Neither a state nor the federal government can openly or secretly participate in the affairs of any religious organizations or groups and vice versa.
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The Establishment Clause Test (1947 - 1971)
The aforementioned principles became known as “The Establishment Clause Test.”
Other tests for constitutionality of laws and actions were introduced by Supreme Court justices and replaced the establishment clause test over the next 50 years.
Since 1971 The Courts have used three tests when deciding establishment clause cases (a case must clear all 3 tests):
The Lemon Test,
The Endorsement Test, and
The Coercion Test.
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Lemon v Kurtzman (1971)
Lemon v Kurtzman (403 US 602, 1971). The U.S. Supreme Court decided a Rhode Island law allowing the state to pay partial salary of parochial school teachers was unconstitutional.
One result of this case is the Lemon Test - used to determine if a law violates the 1st Amendment.
There is considerable discussion in the general public, and periodically in The Court, about the Lemon Test. However, it has been a guide for lower courts since 1971.
“A government practice is constitutional if:
it has a secular purpose,
its primary effect neither advances nor inhibits religion,
and it does not excessively entangle government with religion.”
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Lynch v. Donnelly (1984)
Justice Sandra Day O’Conner, first proposed The Endorsement Test in Lynch v. Donnelly (1984).
The Endorsement Test asks whether the challenged law or government action has either the purpose or effect of endorsing religion or disapproving of religion in the eyes of the community members?
O’Connor argued, “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community… What is crucial is that the government practices not have the effect of communicating a message of government endorsement or disapproval of religion.”
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The Endorsement Test
Lynch v. Donnelly [465 U.S. 668, 687-694 (1984] and
County of Allegheny v. ACLU [492 U.S. 574, 594 (1989)],
determines if a fully informed hypothetical observer would
view a government practice as either endorsing or disapproving
of religion.
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Lee v. Weisman (1992)
Justice Anthony Kennedy proposed a “coercion” standard in Lee v. Weisman (1992). In this case, the test focused on the psychological coercive effect of clergy-led prayer at graduation ceremonies. The Court found, “The school district’s supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction.” The Court stated in its decision, “… at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.”
Justice Kennedy, a devout Catholic and former altar boy, further stated, “The atmosphere at a state legislature’s opening, where adults are free to enter and leave with little comment and for any number of reasons, cannot compare with the constraining potential of the one school event most important for the student to attend.”
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The Coercion Test (1992)
The Coercion Test – Lee v. Weisman [505 U.S. 577 (1992)],
the court must consider a school-sponsored religious activity in
terms of the coercive effect that the activity has on students.
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The 3 Tests are Applied Together
The “Lemon” Test - To pass constitutional muster, a governmental action must:
1. Have a secular legislative purpose;
2. Have its principal or primary effect be one that neither advances nor inhibits religion; and
3. Not foster an excessive entanglement with religion.
The “Coercion” Test - The government may not pass a statute or implement a practice that uses the machinery of the state to coerce believers, as well as nonbelievers and dissenters to enforce a religious ideal or orthodoxy.
The “Endorsement” Test - The government may take action or pass a statute if:
1. The government has a secular purpose for the action; and
2. In the eyes of a reasonable observer, familiar with history and context, the primary effect of the action does not endorse religion.
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“Unconstitutional Prayer and Religion” in Public School Sport, etc.
Freedom from Religion Foundation – based in Madison, WI
Dan Barker and Annie Laurie Gaylor (co-presidents)
Incorporated in 1978, in Wisconsin, the purposes of the Freedom From Religion Foundation, Inc., as stated in its bylaws, are to promote the constitutional principle of separation of state and church, and to educate the public on matters relating to non-atheism. There state and/or sub-state chapters in all 50 states.
Alabama Freethought Association – based in/near Munford, AL
North Alabama Chapter - Huntsville
Montgomery Area Chapter
Southeast Alabama Chapter - Dothan
West Alabama Chapter - Tuscaloosa
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4th Amendment of the U.S. Constitution - Search and Seizure
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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Unwarranted Search and Seizure?
A local school board rule requires random drug-testing of athletes at the school or within the school system.
A local school board rule requires drug testing of all athletes at the school or within the school system.
A local school board rule requires drug-testing of all students participating in any extracurricular activity-band, choir, or school club to submit a urine sample for analysis.
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14th Amendment of the U.S. Constitution -
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Due Process Violation?
How do you tell an 84-year-old school employee, with 61 years of employment at the school, that he is fired?
Campus police urged the trustees to stay away from the man's modest ranch house on McKee St. Can it wait until morning? No, there would be leaks. A man should never find out he was fired by reading the morning newspaper.
A note should be delivered, directly; and it should simply list a name and phone number to call so he could hear the news from a trustee.
Just before 10 p.m., Fran Ganter (associate AD for Football Operations, and 30-year friend of the coach) was standing inside the house. "I was asked to deliver this...." John Surma's name and cellphone number were scribbled on a piece of small note paper emblazoned with the word FOOTBALL and a watermark image of the team's helmet. On his kitchen phone, Joe Paterno learned he was "terminated" as head coach, "effective immediately."
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FERPA
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal Law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education.
It applies to any record that directly relates to a student and is maintained by an educational agency or institution or by a party acting for the agency or institution.
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HIPAA
The federal Health Insurance Portability and Accountability Act was interpreted initially, in the physical activity-sport realm, as restricting those with informed knowledge from releasing health/medical information for a student or athlete to anyone without the “patient's” express consent.
Under Current interpretations, as noted in the act, it applies specifically to a “Covered Entity,” including:
(1) A health plan,
(2) A health-care clearinghouse, or
(3) A health care provider who transmits any health information in electronic form in connection with patient health/medical information transaction, that
Discloses, releases, transfers, provides access to, or divulges in any manner, a patient's health/medical information outside the entity holding the information.
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Interpretations
By transactions, HHS means many administrative procedures, such as billing, payments, authorization for services, certification of referrals, benefits coordination, eligibility determination, and verification of the status of claims.
An athletic trainer or coach at a school is not automatically a covered entity. If the ATC bills for medical coverage or bills athletes’ insurance plans for in-house or outside treatment, however, that may make the employer a covered entity. If an ATC does not conduct any electronic transactions, but other employees in the institution do, it gets a bit muddy. “You have what’s known as a hybrid entity,” according to HIPPA experts, including the athletics implications. “A hybrid entity is an organization with some aspects of its operation that are covered entities, and some that are not.
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Communicating Status, Condition, or Treatment
Another issue involves relations between covered and non-covered entities who work together. For example, a physician in a private practice working with a non-covered athletic department will need to communicate with the school’s athletic trainers or coaches. The physician’s disclosure of information about players he or she is treating would be restricted, but the athletic trainers are not. If the physician discloses information to an ATC or coach do they then become covered entities?
Best Practice:
Protect athlete privacy relative to Patient Health Information (PHI)! If information passes from a physician to an ATC to coach and it includes more than a treatment plan, and it becomes headline news, the physician could be called on it. Mainly to protect the physician, an ATC or coach should be careful not to disperse any athlete PHI. Or, if an ATC wants to discuss an athlete’s injury with a coach, the two should be careful to keep the conversation private.
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“NEED-to-Know Basis”
Congress passed HIPAA in 1996 with several aims, one of which was to protect confidentiality of medical information. Rather than being locked away in filing cabinets, patients’ medical records are increasingly being stored as computer files and flying around the Internet during electronic claims, billing, care authorizations, and other administrative tasks. Horror stories abound about misuse and abuse of records.
Unless a patient specifically authorizes release for a certain purpose, only those with a legitimate need may get a person’s private medical information, and anyone who maintains such records must set up procedures to ensure they remain private. So, although the law was clearly written for aims far removed from athletics, anyone involved in sport medicine is affected.
Exactly how the law affects athletics is not crystal clear, and many school athletic departments are struggling with how to interpret it.
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Relationship Between FERPA and HIPAA
Education and treatment records both fall under FERPA and are excluded from coverage under the HIPAA Privacy Rules
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 the exceptions to written consent or with the student’s written consent.
If a school discloses an eligible student’s treatment records for purposes other than treatment, the treatment records are no longer excluded from the definition of “education records” and are subject to all other FERPA requirements, including the right of the eligible student to inspect and review the records
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How FERPA and HIPAA Affect Athletic Administrators and (Head) Coaches
Any disclosure of injury or additional information in student-athlete records to other than those specifically enumerated in FERPA can only be done if the student-athlete consents in writing
Note: Other institutional employees who have a legitimate educational interest in the records do not need to obtain written consent
A blanket authorization to release private health information at the beginning of the year can be used as a prerequisite to a student-athlete's participation in the athletics program. BUT, a school system attorney should approve the verbiage!!
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