Attorney General blasts ABOR over COVID-19 response

Arizona AG Mark Brnovich argues that the release of health records would protect the public

Attorney General Mark Brnovich said government, including public universities, should "favor transparency" by disclosing information related to positive COVID-19 cases in an opinion sent to the state House of Representatives on March 27.

His opinion says that while there is no requirement for universities to report information about positive COVID-19 cases, they should follow appropriate disclosure laws "in the interest of protecting the public."

Brnovich said universities should cater to the Federal Educational Rights and Privacy Act rather than the Health Insurance Portability and Accountability Act because school heath records are part of a student's educational records.

Regardless of whether the students' health care provider is on- or off-campus, health records are still maintained by the school and therefore subject to FERPA. His opinion says that without authorization and recognized exception, schools are prohibited from disclosing educational records. 

According to FERPA, health and safety emergencies are an exception, and information can be shared with public health and law enforcement officials because the information is "necessary to protect the health or safety of the student or other individuals."

"Given the current health emergency, universities should apply FERPA/HIPAA exceptions and disclose sufficient information related to positive COVID-19 cases so those potentially affected students, staff, visitors, etc. can self-monitor and potentially self-quarantine," the opinion says. 

Despite his eight-page opinion citing numerous precedents and federal laws, the Arizona Board of Regents retorted with a letter from their general counsel last week citing an older tweet from Brnovich that ignited the heated legal back and forth. 

In its response, ABOR said that it would not release any information regarding positive COVID-19 cases. ABOR called out Brnovich early, saying he falsely claimed he had talked to the board before issuing the opinion. Their letter goes on, citing actions made over a month-long period to protect students and staff while following guidance from the Centers for Disease Control and Prevention

ABOR said its communication has been focused on specific individuals. 

Universities under its supervision have been "moving to remote learning and work and recommending self-isolation of individuals who have traveled or been in contact with ill individuals, have reduced the number of people who could have been exposed on campus," the letter says. 

ABOR said that Brnovich's opinion didn't reference the state's HIPAA statute and that his opinion concedes to the fact that under FERPA, records typically shouldn't be disclosed. 

"Individual student records may be released only if necessary to protect health or safety, and even then, only to a very small group of individuals," the letter said, claiming that the opinion relied on Brnovich's personal policy view rather than the law. 

"The Board is committed to relying on and distributing only accurate information regarding this public health crisis and how we are responding," ABOR's response said.

ABOR finished the letter, listing all of the ways universities have responded including alternative instruction, cancelation of nonessential travel and postponement of large gatherings. 

READ MORE: UA parents seeking housing, fee refunds file lawsuit against ABOR

ABOR said private disclosures have been made on a case-by-case basis and will continue to be made as the pandemic continues in the coming weeks. 

A statement from ABOR Chair Larry Penley reiterates the main arguments of the general counsel's letter and he said, "It is disappointing that the Arizona Board of Regents must spend precious time during this health crisis correcting the Attorney General's incorrect assertions that misinform."


Reach the reporter at pjhanse1@asu.edu and follow @piperjhansen on Twitter. 

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