Saturday, September 01, 2007
Kaine weighs in on panel's report
The governor said there needs to be a balance between privacy rights and public safety.
What are the laws?
HIPAA
- The federal Health Insurance Portability and Accountability Act of 1996 governs medical information. The act applies to health care providers and billing entities. It requires that records be disclosed to patients and to anyone with a written authorization from the patient. It also allows sharing of records when needed for treatment, in cases when someone presents an imminent threat to individuals or to the public, or to help law enforcement locate a suspect.
- HIPAA does not apply to records held by school medical facilities.
FERPA
- The Family Educational Rights and Privacy Act of 1974, which like HIPAA is federal legislation, covers educational records, including those of school medical facilities, but not records created by school police departments for law enforcement purposes. It applies to all institutions that get federal money, which includes nearly all colleges and universities, and elementary and secondary schools.
- FERPA allows disclosure of records to parents who claim adult students as dependents on their taxes. It allows information to be given to parents if a student violates drug or alcohol laws and is under age 21. It allows school officials to use information if they have been designated as having an educational interest in getting the information. It also allows releasing information to anyone in emergency situations where the information is needed to protect health and safety.
The panel’s recommendations about information-sharing include:
- Virginia's attorney general should develop guidelines about how privacy laws apply to troubled students.
- Privacy laws should have safe harbor provisions to protect good-faith disclosures made in the interest of safety.
- FERPA should be amended to clarify rules for medical records and allow them to be disclosed to off-campus providers.
- FERPA's emergency exception should be made more flexible.
- Virginia's Commission on Mental Health Law Reform should consider ending individuals' rights to keep the results of commitment hearings private.
- The national higher education associations should develop better protocols and training on information sharing.
- Repeated incidents of student' threatening behavior should be reported to the counseling center and to parents.
- University police should report to other officials and parents when temporary detention orders are issued for students or staff.
- The university counseling center should report to a threat assessment team when students are in court-ordered treatment.
- The Virginia Health Records Privacy statute should have a safe harbor provision and be amended to allow all treatment providers to share records in cases of involuntary commitment.
- The Virginia Health Records Privacy statute should expressly allow care providers to report noncompliance with outpatient orders.
SOURCE: Virginia Tech review panel’s report
Again and again in the report from the Virginia Tech shootings review panel, one theme emerges: Share more information.
It's far too soon to know how the report's many recommendations in this area will fare, but state and university officials are beginning what promises to be a lengthy sifting of their implications.
Speaking Friday, Gov. Tim Kaine hit one aspect of the report's suggestions -- that there be more study of opening a pipeline between high schools and universities for information about students' mental illness.
In the case of Tech shooter Seung-Hui Cho, information about a diagnosis of selective mutism and depression, and the treatment and accommodations that let Cho succeed as an honors student at his Fairfax County high school, did not accompany him to college.
The university surely would have responded differently to various reports of Cho's strange behavior if officials had had access to his records from high school, Kaine said.
"They would have said, 'Wow, this is a serious problem.' But I think the fact that virtually all of the students that come on that campus and other campuses sort of come on as free agents, that is a huge problem for us."
Like other observers, Kaine said better information-sharing involves finding a balance between privacy rights and public safety.
"I can see some people having some concerns about that," the governor said. Speaking of transferring more records between high schools and institutions of higher education, he said, "I can also see an overwhelming public-safety justification for why doing that, at least to some degree, would keep campuses and our children safer and enable them to succeed when they're on campus."
The Tech review panel's report also highlighted the need for university staff to take a new look at how the Health Insurance Portability and Accountability Act and the Family Educational Rights and Privacy Act -- federal laws that govern medical and educational records -- and other privacy regulations are interpreted.
The report charged that while different groups within Tech -- such as faculty, residence hall staff, police or the counseling center -- had information on different aspects of Cho's odd behavior, overly strict interpretations of privacy laws kept them from assembling the data into a more complete picture.
Reading the laws as a barrier to release of nearly any information, especially in cases of mental illness, is common.
John Snook, an attorney for the nonprofit Treatment Advocacy Center, said Thursday that privacy concerns can get in the way of effective care. He said he had encountered cases where privacy laws were invoked to keep families from learning details of a relative's illness, or even whether a mentally ill relative was hospitalized.
Eric Earnhart, spokesman for Carilion Clinic, noted Friday that the privacy portion of HIPAA was not the main purpose of the 1996 act, which focused on allowing health insurance to follow a person between jobs.
"The idea was if we are going to start all this transfer of information, we're going to have to have something to control the privacy of that information," Earnhart said.
As for the Tech panel's recommendations, Earnhart wrote in an e-mail later Friday, Carilion favors any changes that would improve care.
Plus, he added, "Consistency is always helpful when dealing with multiple federal rules and regulations."
In a statement Thursday, Tech President Charles Steger issued a call for finding a way to get more information about students' pre-college lives, and for breaking down barriers to information-sharing within the university.
"It is still a gray area," Steger said, and clarifying or changing privacy laws "will engender much discussion."
Staff writer Michael Sluss contributed to this report.
