Wednesday, April 16, 2008

Common Sense 101

On April 16, 2007, thirty-two people were killed at Virginia Tech by Seung-Hui Cho, a student whose mental illness and dangerous actions were known to university officials.

In the wake of this tragedy, the Department of Education has proposed new regulations to clarify when an educational institution may lawfully disclose a student’s medical information to parents or others. The new regulation reads in pertinent part:

An educational agency or institution may disclose personally identifiable information from an education record to appropriate parties including parents of an eligible student, in connection with an emergency if knowledge of the information is necessary to protect the health and safety of the student or other individuals. Family Education Rights and Privacy, 73 Fed. Reg. 57 (March. 24, 2008) p. 15601.
The new regulation does not change the conditions under which personal information may be disclosed. Rather, it merely aims to remove confusion about those conditions. Most notably, it seeks to help prevent tragedies such as occurred exactly a year ago at Virginia Tech.

In response to the Virginia Tech tragedy, the Secretary of Education investigated and found that many educators across the United States did not have a proper understanding of existing federal disclosure requirements. These educators generally believed that the existing disclosure restrictions imposed significantly greater limitations than they really did.

Besides clarifying the specific circumstance under which a disclosure to parents or others is lawfully permitted, the new regulation also provides safeguards for students to ensure that these disclosures are not made inappropriately. If a complaint is made about the particular circumstances surrounding the disclosure of a student’s personal information, the Department of Education is authorized to review these circumstances to verify that there was a rational basis for the institution’s action.

Some organizations have already expressed opposition to this proposed regulation. At least one organization has characterized this new regulation as heralding in a new hands-off approach that places at risk the confidentiality of student’s mental health information.

For some, it seems that the need to protect personal privacy always trumps the need to protect people from hurting themselves or others. However, it is high time that we apply common sense in balancing public safety and privacy concerns. The Department of Education should be commended for clarifying that medical information can be properly released in emergency situations in which a student with a mental illness is threatening harm to himself or others.