Compliance Issues for Student Life

 

This document was written in June of 2002, and updated Oct. 2002 to reflect changes in immigration law. The document attempts to set out the major ministerial duties imposed by federal law and District of Columbia statutes and regulations on a private university administrator in the following student life operational areas.  There is also some reference to duties imposed by case law, such as those necessitated by the judge-made law regarding negligence and contracts.

 

I. Public Safety

II. Disability Support Services  

III. International Student and Scholar Services

IV. Athletics

V. Counseling Center/ Student Health

VI. Housing and Residential Life

VII. Multicultural Student Services

VIII. Student Records

IX. Wellness/Alcohol Abuse Prevention

X. Student Judicial Office

XI. Campus Ministry

XII. Career Services

XIII. Children's Education Center

XIV. Campus Programs

XV. Coordinated Distribution of Required Disclosures

XVI. Appendix 

 

A brief overview of each area will be provided, with links to the CUA Office of General Counsel web page for more in depth information. Filing deadlines and record keeping obligations are highlighted. While comprehensive coverage is hoped for, there are undoubtedly omissions which, in a particular case, could become critical. Accordingly, managers are encouraged to consult with counsel for the university anytime they have questions or a difficult problem. While references to specific departments at CUA have been left in the memo, references to particular employees at CUA have been removed. Institutions are invited to use this document for compliance at their own school. CUA employees who would like a copy of the original memo may contact the Office of General Counsel or the Vice President for Student Life.

 

I. Public Safety

 

A. Federal Laws

 

1. The Campus Security Act of 1990

 

Reporting Requirements

 

The Campus Security Act requires colleges to report campus crime statistics and security measures in several ways.

 

• Distribution of an annual security report to all enrolled students and current employees by October 1 of each year.  This can be done by direct mailing; by giving a copy directly to the students and employees; or by giving a notice with a link to the web site of the report, a brief description of the report's contents and a statement that a paper copy will be provided upon request.  CUA has chosen to mail the annual security report to all enrolled students at their home address and to all employees at their campus address.  This is done by the Director of the Department of Public Safety.

 

• Prospective students and prospective employees must receive a notice of the availability of the annual security report, a brief summary of the report and an opportunity to request a copy of the report.  Responsibility for this requirement as to students is the responsibility of the office of Admissions. Click here for a summary of all the information that must be sent to prospective students. Responsibility with respect to prospective employees is in the office of Human Resources. 

 

• The annual security statistics must be submitted to the Secretary of Education by Oct. 15^th. [1]  This is done over a secure web site transmission, and is handled by the Department of Public Safety, presently by the Associate Director.

 

Campus Crime Alerts

A timely warning to the campus community must go out regarding any of the below listed crimes which are deemed to represent a threat to the students and employees, and which are reported to campus security authorities or to local police agencies.   The campus crime alert must be issued in a manner that is timely and will aid in the prevention of similar crimes.  Campus security may decide to issue an alert about a crime occurring off-campus but in a location frequented by students, even though such a crime would not be included in the annual report. Responsibility for compliance with this requirement is assigned to the CUA Crime Prevention Officer.

Campus Crime Log

Institutional law enforcement units must keep a daily log that records crimes by their nature, date, time, general location, and disposition of the complaint.  The log must be made available to the public within two business days of a request unless disclosure of such information would:

·         be prohibited by law;

·         jeopardize the confidentiality of the victim;

·         jeopardize an ongoing criminal investigation;

·         jeopardize the safety of an individual;

·         cause a suspect to flee or evade detection; or

·         result in the destruction of evidence.

 

For more on what must be in the Annual Security Report, and what type of crime statistics must be collected, see here. Responsibility for the crime log is currently assigned to the CUA Campus Crime Prevention Officer.

 

Who on Campus Is Responsible for Reporting Crimes and Campus Offenses?

·         Persons who receive referrals for discipline involving alcohol, drug or weapon violations which are also a violation of the law, and for which a sanction may be imposed, must report those cases to the campus security office.

·         Anyone who is a "campus security authority" who receives a report of or is aware of a crime must report it to the campus security office.

Campus security authorities are defined in the regulations as:

·         Members of a campus police department or a campus security department of an institution.

·         An individual who has responsibility for campus security, but is not a part of a campus police department or a campus security department, such as an individual who is responsible for monitoring entrance into institutional property. CUA interprets "campus security authority" to include all employees, including student employees, who work in a position where they control or monitor access to some part of campus.  Examples are Hall Security Assistants in the residence halls, Security Kiosk Attendants, students working as Public Safety Assistants and students monitoring access to CUA libraries. Note that under the law independent contractors, such as those who control access to the CUA Law Library, would also come under this bullet.

·         Any individual or organization specified in an institution' s statement of campus security policy as someone to whom students and employees should report criminal offenses.

·         Any official of the institution who has significant responsibility for student and campus activities, such as student housing, student discipline, and campus judicial proceedings, but who is not acting as a pastoral or professional counselor.[2] Examples of those with significant responsibility may include the dean of students or other official(s) who oversee student housing, a student center, or student extra-curricular activities; an athletic director; team coach; or faculty advisor to a student group.

 

How to Report Crimes on Campus

 

See the Information for Student Security Authorities, which contains definitions of the various crimes that must be reported, as well as a concise summary of the process for reporting crimes.

 

The two area coordinators in Housing and Residential Life are responsible for making sure that all new Hall Security Assistants receive this publication. Students who work as Security Kiosk Attendants receive the flier at their orientation session which is sponsored by the Department of Public Safety. Public Safety also is responsible for ensuring that other "campus security authorities" under their control receive the flier. The Head of Access Services at the Law Library is responsible for ensuring that the employees of the contractor who is hired to control access to the Law Library receive the fliers. At the Mullen Law Library the person tasked with distribution of the flier to students controlling access to the Library is the Head of Public Services. The Athletic Director is responsible for ensuring that all students who guard access to the DuFour Center have received the flier.

 

Crime Statistics that Do Not Require Reporting

 

Under the final regulations, the institution does not need to report crimes reported to a pastoral or professional counselor.  A pastoral counselor is a person who is associated with a religious order or denomination that recognizes him/her as someone who provides confidential counseling, and is functioning within the scope of that recognition as a pastoral counselor.  A professional counselor is a person whose official responsibilities include providing mental health counseling to members of the institution's community and is functioning within the scope of his/her license or certification.  Under the regulations, priests or clerics at a university, and counselors in a counseling center (including supervised students), would not need to report criminal offenses to the campus security office about which they are informed while working in their pastoral or counseling capacity.

 

Note that this exemption from the reporting requirements under the Campus Security Act does not relieve counselors of the duty to exercise reasonable care to protect a foreseeable victim from danger posed by the person being counseled.[3]  If someone indicates to their counselor intent to commit a violent crime against another, and the counselor determines that the patient poses a serious danger of violence, then steps must be taken by the counselor to protect the intended victim.

 

Record-keeping Requirements:  Institutions must retain the records on crime statistics for three years following the last year the information was included in the annual report. For example, October 1, 1997 campus security records would be kept until October 1, 2003.

If the institution is found to have "substantially misrepresented" the number, nature or location of crimes, civil penalties may result in a $25,000 fine per violation.

 

A June 4, 2002 article in the Chronicle of Higher Education noted that St. Mary's College in South Bend, Indiana was found to not be in complete compliance with the Campus Security Act. The organization "Security on Campus" filed a complaint with the Department of Education alleging the College had not properly handling complaints by two students who had been victims of sexual assault. The Dept. of Education, after a three day investigation, noted that overall safety efforts by the College were impressive, but that St. Mary's had incorrectly reported some crime statistics based on academic year rather than calendar year, and that the crime classifications the College was using did not track the definitions in the federal regulations. The DOE found the violations to be technical, and did not fine the college.

Other issues addressed were the recording of anonymous incidents in crime logs even if the victim did not report the crime to the police or request an investigation. The CUA Director of Public Safety is going to seek clarification on these and other issues at the Professional Conference for Public Safety Officers held in June.

 

2. The Campus Sexual Assault Victim Bill of Rights (amends Campus Security Act)

 

The Annual Security Report must include the following:

(i) A description of educational programs to promote the awareness of rape, acquaintance rape, and other forcible and nonforcible sex offenses;

(ii) Procedures students should follow if a sex offense occurs, including procedures concerning who should be contacted, the importance of preserving evidence for the proof of a criminal offense, and to whom the alleged offense should be reported;

(iii) Information on a student's option to notify appropriate law enforcement authorities, including on-campus and local police, and a statement that institutional personnel will assist the student in notifying these authorities, if the student requests the assistance of these personnel;

(iv) Notification to students of existing on- and off-campus counseling, mental health, or other student services for victims of sex offenses;

(v) Notification to students that the institution will change a victim's academic and living situations after an alleged sex offense and of the options for those changes, if those changes are requested by the victim and are reasonably available;

(vi) Procedures for campus disciplinary action in cases of an alleged sex offense, including a clear statement that --

(A) The accuser and the accused are entitled to the same opportunities to have others present during a disciplinary proceeding; and

(B) Both the accuser and the accused must be informed of the outcome of any institutional disciplinary proceeding brought alleging a sex offense. Compliance with this paragraph does not constitute a violation of the Family Educational Rights and Privacy Act (20 U.S.C. 1232g). For the purpose of this paragraph, the outcome of a disciplinary proceeding means only the institution's final determination with respect to the alleged sex offense and any sanction that is imposed against the accused; and

(vii) Sanctions the institution may impose following a final determination of an institutional disciplinary proceeding regarding rape, acquaintance rape, or other forcible or nonforcible sex offenses.

 

3. Campus Sex Crimes Prevention Act

Effective Oct. 27, 2002, all Institutions of Higher Education must issue a statement  advising the campus community where law enforcement agency information provided by a State concerning registered sex offenders may be obtained, such as the law enforcement office of the institution, a local law enforcement agency with jurisdiction for the campus, or a computer network address.[4]  The DC Metropolitan Police will provide information on registered sex offenders to the Campus Public Safety Office. (See D.C. Code § 24-1131)

 

Under this new federal law, which is codified at 42 USC § 14071j, state procedures must be in place to ensure that information concerning a registrant enrolled or working at an institution of higher education is promptly made available to a law enforcement agency having jurisdiction where the institution is located. This information will then be shared with the school's law enforcement unit as soon as possible.

 

Notification under this section should be accomplished by adding the web link or law enforcement office address where this information can be found to the Annual Campus Security Report. FERPA does not prohibit release of data on registered sex offenders under this law.

 

Responsibility for compliance with this new law has been assigned to the Campus Crime Prevention Officer.

 

4. The Communications Act of 1934 

 

The Federal Communications Commission (FCC) is responsible for enforcement of this law. In order to operate the Public Safety police radio station, DPS must receive an FCC license to operate on a police frequency.  The FCC license is renewed once every 5 years.  Application for renewal is made to the Federal Communication Commission. The current license expires 1/4/04. Public Safety will start the process of renewal in October 2003.  The radio maintenance contractor prepares the required forms for submission by the Director of Public Safety.

 

B. District of Columbia laws

1. College and University Campus Security Amendment Act of 1995 DC Law 11-63 DC Act 11-120[5]

 

Note: Most of this act was never actually put into the DC code, but it still operates as law. A copy of the law is available from the Office of General Counsel.

 

The Act provides a process for the D.C. Chief of Police to appoint campus and university special police officers for duty in connection with the property of, or under the charge of an academic institution of higher education when the university requests such an appointment. Officers so appointed are subject to the Metropolitan Police Department rules insofar as they are applicable. Each appointment is made for a period of two years. Renewals of the commission for additional two-year periods may be made at the discretion of the Chief of Police.[6] The special officers authority is confined to the place they are commissioned to protect, but they may exercise their authority off campus when in fresh pursuit of a felon or misdemeanant from, or immediately adjacent to, the property or area to which he is she is commissioned to protect.  

To qualify, one must be at least 21 years of age, a citizen of the U.S., of good moral character, and approved by the Chief of Police. In addition, the officer must receive one week of indoctrination training prior to performing any patrol duties, and complete the Campus Law Enforcement Academy (250 hours) or an equivalent law enforcement academy within 2 years of receiving the commission. Previous law enforcement training may be substituted to meet the requirements of this section.  If firearms will be carried, the officer must complete a 56 hour firearms course.

Public Safety conducts a reference check as they would with any other employee, but the DC Special Officers Branch, by law, must complete an interstate comprehensive criminal background check including NCIC, INTERPOL, PROMIS.

Within 24 hours after the expiration or revocation of his/her commission or upon the termination of employment by the university, a special police officer shall deliver to the D.C. Chief of Police his/her commission.

 

Applications for the appointment of campus and university special officers shall be made jointly in the names of the prospective officers and the name of the university upon forms supplied by the Chief of Police.

 

There is an annual license (the Agency License) required for the university to operate its own police department. This license is renewed each November.  Renewal application is made to the Special Officers Branch of the Metropolitan Police Department, the oversight agency within DC government for Public Safety. Responsibility for this annual renewal is assigned to the Director of Public Safety.

II. Office of Disability Support Services

 

A. Federal Law

 

1. The Rehabilitation Act of 1973 (Section 504)

2. The Americans with Disabilities Act of 1990

 

The two laws listed above govern the provision of disability support services to students and define the university's obligations with respect to physical access.

 

The Rehab Act and the ADA both prohibit discrimination on the basis of disability. The Rehab Act covers any federally funded institution, and the ADA covers all schools, so CUA is covered under both laws. The requirement for non-discrimination extends to admissions, recruitment and programs and services. See Disability Policies, Procedures and Services in the CUA student handbook for a general overview of how these laws are put into effect at CUA.

 

Establishment of Grievance Procedure and Appointment of Compliance Officer:

 

The Rehab Act requires establishment of a grievance procedure for students and the designation of at least one person to coordinate compliance. The person designated as the ADA compliance officer is currently the university's Equal Opportunity Officer. 

 

Providing Reasonable Accommodations

 

Both laws require the university to make a modification or adjustment to the status quo inherent in the program or activity to allow a qualified person to fully participate in the programs and activities of the university. For a specific overview of how the Office of Disability Support Services handles the process of documenting the need for and enabling the provision of reasonable accommodations when necessary, see Services and Accommodations for Students with Disabilities, a guide for faculty, staff and students.

 

Distribution of Policy

 

Notices of the institution's policy must be provided to students and must also be included in recruitment materials.

 

Physical Access Issues under the Disability Laws

 

When considering physical access to the university campus, it is important to remember that Section 504 and the Americans with Disabilities Act (ADA) contain different standards.  Section 504 requires that all federally assisted programs and activities be readily accessible to and usable by individuals with disabilities, even if major structural alterations are necessary to make a program accessible.  Title III of the ADA, in contrast, only requires alterations to existing facilities if the modifications are readily achievable; that is, able to be accomplished easily without much difficulty or expense.  A public accommodation that is covered under both Section 504 and the ADA is still required to meet the program accessibility standard in order to comply with Section 504, but would not be in violation of the ADA unless it failed to make readily achievable modifications.  On the other hand, an entity covered by the ADA is required to make readily achievable modifications, even if the program can be made accessible without any architectural modifications.  Thus, an entity covered by both Section 504 and Title III of the ADA must meet both the program accessibility requirement and the readily achievable requirement. More on the specific requirements can be found on the web pages listed above.

 

Applicability to Study Abroad Programs

 

The Office of Civil Rights has taken the position that 504 and the ADA do not apply to study abroad programs. While there is not a legal requirement here, the extent to which the university makes study abroad programs accessible as a matter of policy should be addressed in conjunction with the Office of General Counsel.

 

Confidentiality of Student Records

 

All records on disability are to be kept confidential, both under the ADA and under student records law (FERPA). Thus, the manner in which records are kept is a key consideration in this area of the law. The Director of the Office of Disability Support Services has been an excellent advocate on campus for compliance with this legal requirement.

 

 

III. International Student and Scholar Services

 

This will be the area of most flux and perhaps the most challenge in the coming year. There are several main laws and a number of recently adopted laws and regulations imposing requirements in this area of the law.

 

A. Federal Law

 

1. The Immigration and Nationality Act of 1952 (as amended)

 

2. Mutual Educational and Cultural Exchange Act of 1961
 http://counsel.cua.edu/FEDLAW/Mutuals.cfm

 

3. The U.S.A. PATRIOT Act

 

4. Enhanced Border Security and Visa Entry Reform Act, HR 3525 (May 14, 2002)
See "Tracking Compliance Deadlines for Foreign Student Monitoring." 

 

There are so many compliance requirements under these laws that we direct you to several memos on immigration compliance requirements. The two you should note are the memos on F and J students, entitled Responsibilities of an Institution Enrolling Students in the F-1 visa Category, online and Responsibilities of an Institution Participating in an Exchange Visitor Program, online. The F memo has been recently updated and the J memo will be updated as soon as the State Department issues regulations conforming to the new legislation.

 

As a supplement to these memos, this section is a quick overview of how the information collection requirements may change. If the proposed regulations that were posted by the INS on May 16, 2002 are adopted as is, then the ability of CUA to interface with SEVIS and provide the information electronically must be in place by Jan. 30, 2003. The Jan. 30, 2003 deadline is tied to issuance of any new I-20s, all regular periodic reporting, and the specified event based reporting. Click here for more on this, and also the Interface Control Document for the Student and Exchange Visitor System for how information will be reported in batches.

 

It will be a good deal of work to switch over to the new system, and under the proposed regulations, a Designated School Official must review any information input into SEVIS and only a DSO can submit the information. The proposed regulations allow for the designation of a staff person to a new support position, an Administrative School Official, or ASO.  ASOs can only input data to SEVIS, they cannot submit it. When CUA seeks recertification from the INS to operate under SEVIS, which all schools must do, you may wish to consider designating an Administrative School Official. Also, the Department of State has yet to issue the proposed regulations which will govern the timing for capturing J students and scholars in SEVIS.

 

IV. Athletics

 

A. Federal Law

 

1. Equity in Athletics Disclosure Act of 1994

 

This law applies to a coeducational institution of higher education that: 

·         Participates in any title IV, HEA program; and

·         Has an intercollegiate athletic program. 

 

Reporting: An institution subject to this law must, no later than Oct. 15th of each year, make available on request to enrolled students, prospective students, and the public, the report required to be produced under this law. The report must be made easily accessible to students, prospective students, and the public, and provide the report promptly to anyone who requests it. Responsibility for this task has been assigned to the Field Hockey Coach, who receives assistance on this from the Director of Planning and Institutional Research in CPIT.

 

Give notice of the report's availability: The institution must provide notice (notification of the availability of the information provided to an individual on a one-to-one basis through an appropriate mailing or publication, including U.S. Post, Campus mail, or e-mail) to all enrolled students and to prospective students of their right to request the report. The notice must have the electronic address if the report is being made available online, and a description of the report, with the statement that a paper copy is available upon request. 

 

Submit report to the Secretary of Education: Within 15 days of making the report available to students, prospective students, and the public,  (so at the latest Oct. 30th of each year) the school must submit the report to the Secretary of Education. This law also requires institutions that offer athletically related student aid to submit an annual report to the Secretary of Education by July 1^st each year for the period ending August 31^st of the previous year. The additional federally imposed reporting  requirements are  summarized on the OGC web page online. As CUA does not offer athletically related student aid (Division III schools may not do this) this requirement does not apply to CUA.

 

2. Title IX of the Education Amendments of 1972

 

Generally, the law prohibits gender discrimination in any educational program or activity that receives federal funds.  Independent undergraduate programs may be single-sex programs, and an exemption is contained for religiously affiliated colleges if a conflict exists between Title IX and their religious tenets.  A primary focus of the law and the implementing regulations is on sports selection and competition levels.

 

This is a complex area of the law and our office would be happy to provide you with a memo detailing the most recent legal guidance on how Title IX is being interpreted, and how best to go about determining compliance. Let us know if this would be useful.

 

NCAA Rules and Regulations

 

This memorandum does not review the NCAA rules and regulations for a Division III team. This information is contained in the NCAA Divisional Manual. If you would like assistance in reviewing the compliance requirements in this area, we would be happy to assist. The Division III governance structure has not, to this point, attempted to place greater emphasis on institutions in the form of a more advanced or rigid NCAA compliance program.  Beginning with the 2002-03 academic year the NCAA will have the newly revised Division III rules test on line.

 

If CUA were to move up to Division II, additional rules and regulations would apply. The NCAA publishes a document in PDF format entitled "Making Compliance Easier" that spells out the rules and reporting requirements for Division I and II schools.

 

C. Tort Law as it relates to Summer Camp Programs Run by the Athletics Department

 

The operation of our summer camps carries potential tort liability based on our duty to provide a safe camp for minors. If CUA is negligent and a camper is injured, CUA could be liable.  The waiver used by the Athletics Department for summer camp programs has been reviewed by this Office and should continue to be used for all summer camps. However, the waiver will not completely insulate CUA from claims of negligence in the event of an injury.

 

The generally accepted safety standards for running summer camp programs have changed over the years. For example, cell phones are now considered an essential on the field and in remote locations in case of emergency.  Other additional layers of safety include routine checking of playing surfaces; accessibility of trainers on site or at least a sports physician to contact in the event of an injury; and training for staff with regard to handling of blood/bodily fluids in event of injury. Criminal background checks are required for camp counselors in some states. D.C. has such a requirement for volunteers in the D.C. "Volunteer for Action Program in the Department of Recreation and Parks' (see D.C. Code § 10-401) but does not appear to have imposed such a requirement on private institutions hiring summer camp counselors. 

 

 

V. Counseling Center/Student Health Center

A. Federal Law

Health Insurance Portability and Accountability Act of 1996 (HIPAA)
 

This law will only affect student operations marginally. The Counseling Center is not a "covered entity" under the new HIPPA rules imposing extensive federal regulatory control over medical records. The new HIPPA rules will affect our relationship with Providence and other hospitals.

B. DC Laws

1. Immunization of School Students
 

This chapter of the Code requires schools to obtain a certification of immunization before admitting any student, unless they fall under an exception.  Exceptions are granted for students who object in good faith for religious beliefs and submit this objection in writing to the chief school official.  Also, a student may be exempt if they obtain a written certificate from a private physician or such that states that the immunization is inadvisable for medical reasons.  This requirement is mandatory for all other students under the age of 26 and covers initial immunization and any boosters or re-immunizations required in accordance with standards issued by the public health authorities.

 

Duties:  If a student does not have certification, the school must notify the student that:  (1) he/she needs certification; (2) that the school may not admit the student until they do so; (3) that immunization can be done by a private physician or the public health authorities; and (4) how to contact these authorities to learn when and where the service can be performed.  However, failure to comply with this duty does not subject the school or school official to liability in damages.  See D.C. Code Ann. § 31-504.  In addition, the school may not allow the student to attend school for more than 10 days without certification unless the student is undergoing a series of treatments that will extend beyond the 10 days and the school receives written notification that the immunization is in progress.

 

2. District of Columbia Mental Health Information Act of 1978

This law places strict limits on the disclosure of mental health information absent written consent from the patient.

 

Disclosure on an emergency basis may be made to one of more of the following: The client's spouse, parent, legal guardian, a duly accredited officer or agent of the District of Columbia in charge of public health, the Department of Mental Health, a provider as defined in § 7-1131.02(27), an officer authorized to make arrests in the District of Columbia or an intended victim if the mental health professional reasonably believes that such disclosure is necessary to initiate or seek emergency hospitalization of the client under § 21-521 or to otherwise protect the client or another individual from a substantial risk of imminent and serious physical injury. There are also limited disclosures, including one for third party payors for the purpose of payment of benefits which is limited to administrative information, diagnostic information, the voluntary or involuntary status of the client, the reason for admission or continuing treatment, and a prognosis limited to the estimated time during which treatment might continue.

 

Recordkeeping: When a disclosure occurs, a notation must be entered and maintained with the patient's record of mental health information. The notation must include the date of disclosure, to whom disclosed, and a description of the contents of the disclosure. In all cases except for disclosure pursuant to the emergency provision, the disclosure must be accompanied by a statement to the effect that: "The unauthorized disclosure of mental health information violates the provision of the District of Columbia Mental Health Information Act of 1978. Disclosures may only be made pursuant to a valid authorization by the client as provided in title III or IV of that Act. The Act provides for civil damages and criminal penalties for violations."

 

Form of written authorization of disclosure

The disclosure must:
   (1) Specify the nature of the information to be disclosed, the type of persons authorized to disclose such information, to whom the information may be disclosed and the specific purposes for which the information may be used both at the time of the disclosure and at any time in the future;
   (2) Advise the client of his right to inspect his record of mental health information;
   (3) State that the consent is subject to revocation, except where an authorization is executed in connection with a client's obtaining a life or noncancellable or guaranteed renewable health insurance policy, in which case the authorization shall be specific as to its expiration date which shall not exceed 2 years from the date of the policy; or where an authorization is executed in connection with the client's obtaining any other form of health insurance in which case the authorization shall be specific as to its expiration date which shall not exceed 1 year from the date of the policy;
   (4) Be signed by the person or persons authorizing the disclosure; and
   (5) Contain the date upon which the authorization was signed and the date on which the authorization will expire, which shall be no longer than 60 days from the date of authorization.

In addition, a copy of the authorization shall be provided to the client and the person authorizing the disclosure; accompany all such disclosures; and be included in the client's record of mental health information.

 

Limitations on client right to access: Personal notes are not subject to the patient right to access rules. Personal notes are defined in the code as mental health information regarding a client which is limited to mental health information disclosed to the mental health professional in confidence by other persons on condition that such information not be disclosed to the client or other persons; and the mental health professional's speculations. In addition, statutory authority exists which grants the mental health professional the ability to limit access to the client in situations where necessary to protect the client or another individual from a substantial risk of imminent and serious physical injury. The client must be told if complete access in not granted. In addition, the mental health professional primarily responsible for treatment may also:

·        refuse to disclose mental health information; or

·        limit disclosure of mental health information

 

This discretion exists even if the client has signed a release, but the mental health professional must believe limited or non-disclosure is necessary to protect the client from a substantial risk of imminent psychological impairment or to protect the client or another individual from a substantial risk of imminent and serious physical injury. Further requirements apply if this provision is utilized by the mental health professional (notification, right to review, etc.) and they can be found in D.C. Code § 7-1202.06.

 

VI. Housing and Residential Life

 

A. Federal Law

1. The Rehabilitation Act of 1973 (Section 504)

 

2. The Americans with Disabilities Act of 1990

The general norms of the Americans With Disabilities Act (ADA) and Section 504 and related regulations and cases apply to student housing and to housing and resident life programs and services as they do throughout the rest of the university.

 

VII. Multicultural Services

A. Federal Law

Title VI of the Civil Rights Act of 1964

B. D.C. Law

D.C. Human Rights Act
 

The basic requirements under both provisions of these laws are non-discrimination. If specific legal questions arise in this area, we would be happy to assist. It may be useful to review the procedure to be used by students with a discrimination complaint.

 

VIII. Student Records

The Family Educational Rights and Privacy Act of 1974 (FERPA)

 

This law regulates the keeping and dissemination of student records at all institutions that receive federal funds or who have students receiving federal funds.  

 

Notification of FERPA rights:

20 USC § 1092(a) requires institutions that participate in student financial assistance programs to provide, on an annual basis, to all enrolled students, information as required under 20 USC § 1232g, The Family Educational Rights and Privacy Act, or FERPA. The notification rights that must be given to students under FERPA are as follows:

·        The right to withhold directory information. Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for the student to inform the institution or agency that any or all of the information designated should not be released without the student's prior consent.

• The right to inspect and review the student's education records within 45 days of the day the University receives a request for access. The university must make arrangements for access and notify the student of the time and place where the records may be inspected.
• The right to request the amendment of the student's education records that the student believes is inaccurate, misleading or otherwise in violation of the student's privacy rights.  If the University decides not to amend the record as requested by the student, the University will notify the student of the decision and advise the student of his or her right to a hearing regarding the request for amendment. Additional information regarding the hearing procedures will be provided to the student when notified of the right to a hearing.
• The right to consent to disclosures of personally identifiable information contained in the student's education records, except to the extent that FERPA authorizes disclosure without consent.
• The right to file a complaint with the U.S. Department of Education concerning alleged failures by the University to comply with the requirements of FERPA.
• The procedure to be used for either accessing or requesting an amendment to the record.
• A description of the University's policy regarding disclosure of records, and who qualifies as a school official with a legitimate educational interest.

Record-keeping Requirements

Records of disclosures and requests for disclosure must be kept, as well as indicate specifically the legitimate interest that each such person has in obtaining the information.  Records need not be kept when the request was from the student or accompanied by written consent from the student, from a faculty or school official who was granted access, a subpoena prohibiting disclosure to the student, a court order investigating terrorism under the patriot act, or for directory information.

Copying Fee

Unless the imposition of a fee effectively prevents a parent or eligible student from exercising the right to inspect and review the student's education records, an educational agency or institution may charge a fee for a copy of an education record which is made for the parent or eligible student.

Subpoenas

All subpoenas or court orders requesting student records must be reviewed by the General Counsel before records may be released. Unless the subpoena or court order by its terms prevents disclosure to the student, the student will be given an opportunity to quash the subpoena.

Implementation at CUA

CUA implements FERPA through the Student Records Policy, which is in the Student Handbook, and online. Also, the Office of General Counsel does monthly training sessions on FERPA during the academic year for all new Cardinal Student Users. The training is open to anyone on campus.

Role of Vice President for Student Life vis-à-vis Student Records Policy

The links to the U.S. Code and the federal regulations on FERPA can be found on our FERPA web page. Students can be referred to the above link for a copy of the law, and also, for further general information on FERPA, to our web page. You can fulfill your obligation to maintain a file on the federal law by referring any requesting students to the above links.

 

IX. Wellness/Alcohol Abuse Prevention

The Drug-Free Schools and Communities Act Amendments of 1989 (amends the Higher Education Act)

 

Requires institutions receiving federal financial assistance to establish drug and alcohol abuse prevention programs for students and employees.  Students and employees must receive materials annually that contain standards of conduct, a description of the various laws that apply in that jurisdiction regarding alcohol and drugs, a description of the various health risks of drug and alcohol abuse, a description of counseling and treatment programs that are available, and a statement on the sanctions the university will impose for a violation of the standards of conduct.  The law also requires a biennial review of the program.  Record-keeping requirements include keeping a copy of the biennial review and other compliance documents for three years after the fiscal year in which the record was created.

 

X. Student Judicial Office

The Family Educational Rights and Privacy Act of 1974 (FERPA)

 

The language below from the CUA student records policy sets forth in a nutshell what federal legal restrictions apply (under FERPA) to the disclosure of student judicial records.

In general, information from disciplinary records, as defined above, shall not be made available to persons on or off campus, without the express consent of the nondependent student involved. A number of exceptions exist. Disciplinary records may be released without the students permission 1) to superiors of the vice president for student life 2) pursuant to legal process as defined herein, or 3) to CUA school officials or to school officials at other institutions who have been determined to have a legitimate educational interest in the behavior of the student, when the education records contain information concerning disciplinary action taken against the student for conduct that posed a significant risk to the safety or well-being of that student, other students or members of the school community. In addition to those instances noted above, the university has the discretion to disclose the final results of any disciplinary proceeding conducted by the university against a student who is an alleged perpetrator of any crime of violence (as that term is defined in Section 16 of Title 18, United States Code) or a nonforcible sex offense if the university determines as a result of the disciplinary proceeding that the student committed a violation of the university's rules or policies with respect to such crime or offense.

For the purpose of disclosure under this paragraph, the final results of any disciplinary proceeding shall include only the name of the student, the violation committed and any sanction imposed by the institution on that student; and may include the name of any other student, such as a victim or witness, only with the written consent of that other student. The university also has the discretion to disclose to any parent or legal guardian of a student under the age of 21 information about a violation of any federal state or local law, or any rule or policy of the institution governing the use or possession of alcohol or a controlled substance if the institution determines that the student has committed a disciplinary violation with respect to such use or possession.

 

XI. Campus Ministry

Federal Work-Study Program
 

The law and regulations for the federal work-study program contain prohibitions on using the funds for "sectarian" or religious purposes.  Federal law requires the institution of higher education receiving the federal work-study funds to sign an agreement that the funds will not be used for the "construction, operation, or maintenance of so much of any facility as is used or is to be used for sectarian instruction or as a place of religious worship."  See 42 U.S.C. § 2753(b)(1)(C).

 

XII.  Career Services

The Family Educational Rights and Privacy Act of 1974 (FERPA)
 

The Rehabilitation Act of 1973 (Section 504)

 

The Americans with Disabilities Act of 1990

 

D.C. Human Rights Act

 

Title IX of the Education Amendments of 1972

 

Title VI of the Civil Rights Act of 1964

 

Federal Work-Study Program

 

A number of different federal regulatory laws impact operations in the Career Services Department.

 

XIII. Children's Education Center

A. Federal law

1. The Rehabilitation Act of 1973 (Section 504)

 

2. The Americans with Disabilities Act of 1990

B. D.C. Law Child Development Facilities Regulation § 7-2031 et seq.

The CEC must have a license to operate, and the license must be reviewed annually. The application for renewal must be submitted to the D.C. Department Health no later than 90 days prior to expiration date of the license. With the presentation of proper credentials, authorized D.C. government officials[7] may  inspect the facility at any time, with or without prior notice.

 

Staffing levels, based on the number of children in care, are summarized in the attached memo, as are required educational credentials for staff. The regulations require at least two hours of outdoor play in a full day program, unless extreme weather conditions make this not possible.

 

Parents have the right to request reasonable accommodations for children with disabilities. Medical documentation may be required of the parent. CEC is not required to provide an accommodation absent such documentation, and an accommodation is not required if providing it would impose an undue financial burden, or pose a threat to the health or safety of other students.

 

The certificate of immunization must be obtained for all students attending the CEC, unless they fall under an exception. Training for staff on emergency first aid must be provided.

 

Day care workers are among the professionals required by DC law to report suspicions of abuse or neglect to the DC Child Protective Services Department. Specifics of this law are laid out in the attached memorandum.

Certain records must be kept for three years, and the attached memorandum also spells out this requirement in full.

 

XIV. Campus Programs

A. Federal Law

1. The Rehabilitation Act of 1973 (Section 504)

 

2. The Americans with Disabilities Act of 1990

Campus Programs has an obligation to ensure that all programs are offered in an accessible space. This is reflected in the CUA Event Scheduling Policy, which reads in relevant part:

All meetings and events at the university open to the student and university community, or open to the public, will be scheduled in accessible rooms. This requirement applies to academic events, whether curricular, or co-curricular, and to all student organization meetings. Organizers of closed meetings must be prepared to certify them as such.

 

3. The Internal Revenue Code: Legislative and Political Activities and 501 (c) (3) organizations

 

In order to maintain their tax-exempt status under 501(c)(3), private colleges and universities must not engage in prohibited political campaign or lobbying activity. Failure to follow these proscriptions could result in loss of tax-exempt status for the institution, or imposition of an excise tax under I.R.C. § 4955. The rules that apply with respect to lobbying activities are set forth at I.R.C. § 501(h) and 26 C.F.R. § 1.501(c)(3).  Specific limitations are addressed in the web link above and in the CUA Political Activity Guidelines,  prepared by this office.

XV. Coordinated Distribution of Required Disclosures

A. Federal Law

General Provisions Relating to Student Assistance Programs (20 U.S.C. § 1092)

 

A myriad of disclosure requirements are imposed upon institutions of higher education. See the above web page for the required list of disclosures which must be made to both students and employees.  The federal government realized that the sheer number of disclosure requirements, in addition to the variations on when, how and to whom the information had to be disclosed, was overwhelming, and to that end, The Higher Education Amendments of 1998 required the Department of Education to provide guidance on this topic. Unfortunately, the guidance has not yet materialized. Our office can provide you with a comprehensive list of the required disclosures upon request.