Failures to "connect the dots" leading up to major tragedies
look all too obvious with the benefit of hindsight.
Among other observations, the review panel appointed in the wake of last
spring's Virginia Tech shootings cited failures to communicate about the
gunman, Seung Hui Cho, among campus administrators, the counseling center,
police, and others. All parties, said the panel, thought that "such
communications were prohibited by federal laws governing the privacy of health
and education records."
"The governor's Virginia Tech report highlights the enormous sources
of confusion among counseling centers about what can and cannot be
disclosed," said Jerald Kay, M.D., professor and chair of psychiatry at
Wright State University School of Medicine in Dayton, Ohio, and chair of APA's
Committee on Mental Health on College and University Campuses. "Many
universities have no policies or procedures to guide faculty, residential
advisors, fellow students, police, or administrators about
Yet barriers are not as ironclad as university administrators may have
thought, and they have explicit exemptions if health or safety is endangered,
said attorneys and psychiatrists familiar with campus privacy issues. Many
such barriers arise from either unfamiliarity with applicable laws or
misinterpretation of laws or court cases.
Virginia Tech had established a Care Team to deal with troubled students
well before the massacre. However, the unit did not have the campus police as
regular members and so didn't know that Cho had threatened suicide or had been
involuntarily detained overnight for psychiatric evaluation, said the panel's
report. The residential-life staff had not informed the Care Team about
several reports on Cho's behavior in the dorms. Faculty concerns about a"
sullen, foreboding male student" who "frightened classmates
and faculty with macabre writings" elicited only an agreement from the
Care Team that private tutoring was the appropriate response to the troubled
Contributing to that lack of clarity about communication may have been the
broad range of institutions covered by the Family Educational Rights and
Privacy Act of 1974 (FERPA), suggested attorney Karen Bower, J.D., senior
staff attorney at the Bazelon Center for Mental Health Law in Washington, D.C.
FERPA protects the privacy of student education records and applies to all
schools that receive funds from the U.S. Department of Education.
"FERPA applies to all school settings, including elementary
schools," said Bower, in an interview. "For example, in special
education and in [diagnostic] educational testing in schools, should the
documentation be considered educational records or treatment
Looking at the case from a purely legal point of view, however, may be
"You have to be cautious in a post-Virginia Tech world that the
system doesn't become too constraining," said psychiatrist Victor
Schwartz, M.D., university dean of students at Yeshiva University in New York
City, in an interview. "Students won't come for help if they don't have
faith that the system will support them."
When information or records about a student can be released to his or her
parents without the student's consent is another question. However, FERPA
prohibitions don't apply when the student is still claimed as a tax deduction
by the parents or when there is a need to protect the health and safety of the
student or others, said Bower. (Some state laws may be more restrictive.)
The Virginia investigation revealed that Seung Hui Cho's parents had sought
and obtained treatment for their son during much of his childhood, contrary to
much speculation at the time of the incident.
"The Cho family had done a good job of getting him help, but they had
no idea that there was a problem at Virginia Tech or that he had been
transported for a psychiatric evaluation," said Gary Pavela, J.D.,
director of judicial programs at the University of Maryland.
The choice of when to communicate with parents can be difficult.
"If the clinician thinks there is a family issue, it needs to be
addressed, even if the student initially fears the family will be angry
because he has sought treatment," said Schwartz. "Bringing the
family in is usually helpful, although in really bad situations, it may not be
helpful at all."
There is a valid barrier between what happens in the high school or earlier
years and what can be passed on to colleges during the application process,
said Pavela. Disclosing an applicant's mental health status to the college
would violate the Americans With Disability Act (ADA), and a university that
rejected a student because he or she had been diagnosed with a mental illness
would be guilty of discrimination.
Nonetheless, the ADA doesn't preclude offices at colleges and universities
from using medical records for nonmedical purposes after admission, such as
when a student voluntarily seeks an educational adjustment due to a
disability, Bower explained.
"Medical and mental health records received or maintained by the
school for nontreatment purposes, like those provided to the office of
disability for purposes of obtaining an accommodation, are 'education records'
and are governed by FERPA," said Bower. "They do not fall into the
exception for 'treatment records' since they are not for treatment
Once treatment begins, clinicians, including those on college campuses, are
legally bound to maintain confidentiality and adhere to the ethics codes of
That still leaves room for communication with parents or pertinent college
officials. FERPA covers written records but not necessarily oral
communications, said Bower.
Discussions between therapist and patient may be confidential, but a
student conversation with faculty or fellow students, said Pavela, "is
not constrained by medical confidentiality because there is no therapeutic
So if a student makes a suicidal statement to a roommate, and the roommate
goes to a residential adviser, who passes the information along to an
administrator, the administrator can mandate an evaluation or call the family,
since all the communication so far has been oral and outside the bounds of
While the Virginia panel suggested some changes in state law to clarify
what information can and cannot be exchanged among educational, clinical, and
law enforcement entities, Kay maintained that guidelines can be used to
achieve that end, undergirded by basic principles that balance students'
rights, the need for care, and the greater community's welfare.
"We make a mistake to focus on the liability versus treatment
issues," agreed Schwartz. "We can't ignore the people around
troubled students—fellow students, family, and the rest of the
community. However, the patient and the therapeutic angle should take
precedence within the limits of the law."
"If you're thinking that these are primarily legal issues, you're
already in a bad position," said Schwartz. ▪