Recent Legal Developments

TOPIC: UPDATES IN HIGHER EDUCATION

The following links are to sites that may be of interest on topics/issues relating to higher education:

ADA -- Recent Amendment. On September 25, 2008, the President signed the Americans with Disabilities Act Amendments Act of 2008 ("ADA Amendments Act" or "Act"). The Act retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. However, it changes the way that these statutory terms should be interpreted in several ways. Most significantly, the Act:

directs EEOC to revise that portion of its regulations defining the term "substantially limits";
expands the definition of "major life activities" by including two non-exhaustive lists:

the first list includes many activities that the EEOC has recognized (e.g., walking) as well as activities that EEOC has not specifically recognized (e.g., reading, bending and communicating);
the second list includes major bodily functions (e.g., "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions");
states that mitigating measures other than "ordinary eyeglasses or contact lenses" shall not be considered in assessing whether an individual has a disability;
clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active;
provides that an individual subjected to an action prohibited by the ADA (e.g., failure to hire) because of an actual or perceived impairment will meet the "regarded as" definition of disability, unless the impairment is transitory and minor;
provides that individuals covered only under the "regarded as" prong are not entitled to reasonable accommodation.

To view the act, visit: The Library of Congress

FERPA

Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. Sec. 1232g; 34 CFR Part 99) final regulations were published in the Federal Register on December 9, 2008. The Amendment is to help educational agencies and institutions better understand and administer FERPA, and to make important changes to improve school safety by clarifying information that may be made available, access to education data for research and accountability, and the safeguarding of education records when outsourcing services or functions of the institution involving the handling of student records, among other areas. A copy of the Federal Register , with the final rule, is located at: FERPA

A section-by-section analysis of the amendment is also available at: Analysis of FERPA

HIPAA

Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA) to Student Health Records issued November, 2008 to explain the relationship between the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule, and to address apparent confusion on the part of the school administrators, health care professionals, and others as to how these two laws apply to records maintained on students.

Joint Guidance

Red Flag Rule

The FTC issued new requirements for financial institutions and creditors to help prevent identity theft. Under the Red Flag Rules, financial institutions and creditors must develop a written program that identifies and detects the relevant warning signs -- or "red flags" -- of identity theft. The definitions of financial institutions and creditors are broad enough to include educational institutions when engaged in certain activities such as student loans, debit card transactions and use of consumer reports to conduct credit or background checks on prospective employees. Red Flag Rule

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