Donnalynn Darling Authors, "Good Intentions, But HIPAA Hurts"

Publication Source: Long Island Business News

The tragedy at Virginia Tech might have been avoided were it not for the well meaning federal statutes that blocked the shooter's parents from finding out about what now appears to have been a long history of psychiatric problems.

HIPAA, the Health Insurance Portability and Accountability Act, is the federal health protection privacy act that every medical consumer knows about from visiting a doctor. It prohibits the dissemination of medical records to anyone without the patient's specific written consent. Under HIPAA, when a child reaches the age of majority or becomes legally 'emancipated,' the parent no longer controls the health information about that child. So, HIPAA, which was supposed to protect the rights of a patient, in effect prohibited mental health officials from contacting Cho's family.

The Family Education Rights and Privacy Act, FERPA, gives parents the right to inspect and review the educational records of their children maintained by any educational agency or institution and prevents education agencies and institutions from releasing education records without the written consent of a student's parents. When a student turns 18, however, all rights afforded to the parents are transferred to the student, to the exclusion of the parent. For this reason colleges cannot release transcripts to parents, even when it is the student's parents who are paying the tuition bills.

Had FERPA allowed for the dissemination of Cho's disciplinary record to his parents, the family's intercession may have prevented the massacre.

The police and university's hands were tied by the two federal statutes, which barred them from sharing the troubling indications with his parents.

Mental health experts expound on the risks presented when a student is at college, away from family and friends. Cho had shown warning signs of being at risk for depression and had already exhibited threatening behavior. Yet, he was released after only a day in a mental health facility and after all legal complaints were abandoned because his female victims refused to press charges.

Although enacted with the laudable goal of protecting personal privacy, a hard look needs to be taken at these statutes and an attempt made to balance individual privacy rights with the rights of the general public, including the right to be safe from the murderous actions of psychopaths.

Donnalynn Darling is the chair of Meyer, Suozzi, English and Klein's Personal Injury and Medical Malpractice groups.