OU interim Provost and Senior Vice President Jill Irvine released an email to faculty on Aug. 28 explaining COVID-19 protocols in the classroom. In the email, Irvine said faculty should not inform their classes if a student in the class tests positive.
Several university faculty, however, have said if a student tests positive in one of their in-person sections, they would inform their class of the potential exposure if they were able to do so in a way that did not identify the affected student.
Misha Klein, an associate professor of anthropology, is teaching all of her classes online this semester. However, Klein said if faced with the decision as many of her colleagues have been, she would share the information in the interest of public health.
Klein said the university’s contact-tracing procedure does not act quickly enough to minimize the virus’s spread.
“When someone's been exposed, you need to move quickly to minimize exposure of other people and to make sure that people who have been exposed know that they've been exposed so they can act,” Klein said. “If we wait for the wheels of bureaucracy to grind along until people are contacted, then there are a whole bunch of other people who are going to be exposed in that interval.”
Prior to Irvine’s Aug. 28 email, Klein said she had informed her online class one student had tested positive without identifying the student. She did so to highlight the benefits of having their class completely virtual during the pandemic.
“I told the students, and of course because my class is online, there was no risk to any of the students and that class had not been exposed. And I told them in order to say, ‘Hey, isn't it great that we're online and none of you need to worry,’” Klein said. “‘And by the way, even though one of you got a positive test, you don’t have to miss class and we don't have to go through this whole rigmarole.’”
Klein said even if her classes were in person this semester, she would have made her class aware of any potential exposures.
“If it had been in-person, I would have said something as well. It was absolutely shocking to me when the provost wrote to say that we weren't supposed to share that information,” Klein said. “And in the message that the provost sent, there was no real discussion of the rationale, it was simply a command. This has been what has characterized the administration — they don't see faculty as partners. They don't talk with us as a dialogue.”
Michael Givel, a professor of political science, said there are several instances in which a professor could share information on a potential classroom exposure with their students without violating privacy laws like HIPAA and FERPA.
“There's nothing in HIPAA requirements that prohibits one from talking about (a possible infection) generally,” Givel said. “What it does prohibit an instructor or the university to do is identify an individual or provide information that would reasonably lead to the identity of an individual.”
Documents on frequently asked COVID-19 questions from the U.S. Department of Education also state as long as the information being shared cannot lead to the student being identified, it is legal under FERPA to release information on a positive COVID-19 test.
“It depends, but generally yes — but only if that information is in a non-personally identifiable form,” the documents read. “If an educational agency or institution discloses information about students in non-personally identifiable form, then consent by the parents or eligible students is not needed under FERPA.”
In an interview with The Washington Post, Frank LoMonte, director of the Brechner Center for Freedom of Information at the University of Florida, said FERPA does not apply to university faculty regardless.
According to the Department of Education documents, if an institution released information that a student was absent due to COVID-19, this would not be considered personally identifiable “as long as there are other individuals at the educational agency or institution who are absent for other reasons.”
In the same documents, the Department of Education states the “HIPAA Privacy Rule does not apply to education records that are protected by FERPA.”
Several legal experts and Department of Education officials also told The Washington Post universities cannot rely on HIPAA and FERPA to restrict information about COVID-19 on their campuses.
Steve Ellis, an associate professor of philosophy and graduate liaison who is teaching an in-person section this semester, also said he has little faith in the university’s contact-tracing procedure, particularly its heavy reliance on students' accounts of where they may have been.
“They just don’t catch everybody who needs to be contact-traced, especially because of what incentives a student has to not admit they were doing things of which the university disapproves,” Ellis said, “partying without masks or whatever else.”
Ellis added he feels the university’s contact-tracing staff is simply not large enough to effectively address every COVID-19 case on campus in enough time to keep the virus from spreading further.
“But also the university is busy,” Ellis said. “I've been in contact with tons of people, just through the faculty and staff, who have actually tested positive for COVID, and I've never been contacted by anybody.”
Sandie Holguín, a professor of history who is teaching online and in person, also said she has never been contact-traced despite exposure to individuals who tested positive for COVID-19.
“I've had contact from students who tested positive, and I have not received any notice (from) any official sources,” Holguín said. “I know that the official tracers have not been particularly good about doing this."
In July, OU Director of Media Relations Kesha Keith said OU’s contract tracing is conducted in partnership with the Cleveland County Health Department.
“Goddard Health Center is working with the Cleveland County Health Department to trace contacts of positive cases who are affiliated with the University. Goddard contact-tracers will notify individuals who are considered a direct contact of a positive case,” Keith wrote in a July 24 email. “Currently, Goddard has appropriate staffing to manage the caseload on campus.”
The university used data from the Association of State and Territorial Health Officials and the American College Health Association to estimate the needed number of tracers, Keith wrote. Keith added the number of contact tracing staff would change as needed.
Holguín also said she disagreed with the university’s guidance not to inform classes if a classmate tested positive.
“It's a public health issue. People have a right to know that there are people who are infected, and this certainly does not go against HIPAA, because we're not a medical establishment,” Holguín said. “It doesn't go against FERPA, because we're not naming names. … I think transparency is absolutely necessary when you're dealing with a public health crisis like this — it's insane not to do it.”
Givel said he feels the university’s request to faculty to not inform their classes of a possible infection is an attempt to control information.
“The university has a blanket prohibition on this, and that's inaccurate. But moreover, the question is, why are they doing this?” Givel said. “The answer seems pretty straightforward — they obviously don't want information about this, as much as possible, spread further than it needs to be spread.”
Ellis said while no one in his class has yet tested positive, he would also inform his students if they had been exposed — and echoed Givel’s sentiments on the university’s procedures.
“I think I would say something, because the university's contact tracing depends upon just (students) describing what's going on,” Ellis said. “The university has an incentive to keep the numbers low, and I don’t think they look where they need to be looking.”