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.

After Virginia Tech - much activity, little accomplishment

On Tuesday, the Virginia legislature sent a package of bills to the Governor containing its proposed changes to the state’s commitment laws. Although the end-result was essentially inevitable after a bill to establish a progressive assisted outpatient treatment system was shuttled off to a study committee, the Virginia Legislature made it official on Tuesday – there was much busy work in the wake of the tragedies at Blacksburg but nothing approaching rational treatment laws for the state.

House Bill 499, the chief bill of the package, reworks the present procedural system for outpatient commitment fairly well and offers a slight improvement to the eligibility standard but still leaves Virginia’s laws among the most restrictive of treatment in the country. Essentially, HB 499 will move Virginia law in this area from among the worst to just plain bad.

With the pressure created by the Blacksburg tragedies, the legislators in Richmond realistically had no choice but to (1) do away with the state’s “imminent danger” standard and (2) shore up of the outpatient commitment procedural provisions that let Seung-Hui Cho be placed on outpatient commitment and then just slip away from the treatment system.

HB 499 does both of these.

1. “Imminent danger” is changed to “the person will, in the near future, cause serious physical harm to himself or others as evidenced by recent behavior causing, attempting, or threatening harm.” That is more or less just substituting “near future” rather than “imminent” in exchange for the new requirement of recent acts, attempts or threats of violence.

2. HB 499 sets out and strengthens outpatient commitment procedures. This includes making sure that assigned treatment providers are involved in the outpatient commitment process and responsible for those placed under orders.

The only significant way in which HB 499 exceeds that “bare minimum” in the wake of Virginia Tech is in a modest but significant addition to the “substantially unable to care for oneself” prong of the present commitment standard.

HB 499 adds a new clause that allows the placement in treatment of a person over come by a severe mental illness who is substantially likely to “suffer serious harm due to substantial deterioration of his capacity to protect himself from harm or to provide for his basic human needs as evidenced by current circumstances.” Although still falling far short of the progressive commitment criteria in many other states, that at least is an improvement for Virginia legislators to justifiably claim as an accomplishment, albeit a small one.

Sadly, a small change is not good enough for Virginian’s with the most severe mental illnesses

Responding to tragedy

"A wave of recent school shootings, including the bloody attack in Illinois last week, is again prompting calls around the country for reforms. But in Virginia, where the bloodiest rampage of all took place last spring at Virginia Tech, the initial demands for legislative and regulatory improvements have yielded disappointing results. Other states that have grappled with senseless killings can now look to Richmond as an example -- one not to emulate -- of minimal response to maximum trauma."

- Washington Post Editorial

Worst in the nation is not good enough

The deaths of 33 people at Virginia Tech should have been a wake-up call to legislators to provide real reform to the state’s broken commitment laws. Instead, the General Assembly is considering little more than lip-service reform.

Virginia’s mental illness treatment laws are among the most restrictive in the nation. To get help via involuntary treatment, the state currently requires that someone incapacitated by the symptoms of an illness such as schizophrenia be an immediate physical danger to themselves or others. That’s simply too little, and often too late.

The only proposals now still alive for reform in the General Assembly require that individuals be visibly dangerous before getting treatment. These slight modifications to the existing law would keep Virginia’s treatment standard among the worst in the nation. Read more....

What will it take, Virginia?

British statesmen William E. Gladstone famously observed that “justice delayed is justice denied.” Senate Bill 177 offered Virginians the only meaningful hope for true mental health law reform this year.

Now, Senate Bill 177 has been referred to a subcommittee for further study until next session. When it comes to mental health reform in Virginia, special commissions, blue ribbon panels, and investigating subcommittees abound. Everywhere you look, you can still find some group of experts studying about how to change Virginia’s mental health laws.

However, the time for studying laws has ended, and the time for making real change is here. Some people may hail the small incremental changes in Virginia’s commitment standards that will be made this year as major reform. Don’t be fooled.

If experiencing the worst shooting tragedy in American history is not enough to motivate true reform, then what will it take Virginia?

The real cost of assisted outpatient treatment

Virginia has the opportunity to enact meaningful mental health reform by passing Senate Bill 177. This Assisted Outpatient Treatment (AOT) bill enjoys bipartisan support and will allow for people incapacitated by severe mental illnesses to be placed in court ordered community treatment. The availability of such a program might well have prevented the terrible tragedy that happened at Virginia Tech last April.

Sadly, the passage of Senate Bill 177 is now threatened by those who mistakenly claim it will impose too great of a financial burden. This is a myth.

The implementation of AOT as provided by Senate Bill 177 will not be expensive. This program will not mandate any services that individuals with serious mental illnesses are not already eligible to receive. AOT orders merely require the system to facilitate treatment compliance for noncompliant individuals by providing them with the existing services they need to remain stable and to prevent the severe consequences associated with untreated mental illnesses.

The proof that AOT will not require the creation of new services can be found within the language of Senate Bill 177 itself. One of the requirements for granting an AOT order under this new law is a finding that:

“the community services board that serves the jurisdiction where the person resides has the capacity to provide the prescribed treatment or services.”

Not only will AOT not be expensive, it will ultimately save Virginians millions and millions of dollars in alternative costs that come from hospitalizations and incarcerations of persons who do not benefit from the availability of court supervised treatment. In other states where AOT has been enacted, such as New York and North Carolina, participants have experienced a dramatic decrease in both hospitalizations and incarcerations.

Virginians must separate fact from fiction so that true reform can finally occur. The greatest cost that will be paid by Virginians is not in implementing AOT but in failing to do what is necessary to provide for effective and timely treatment for people lost to acute psychiatric illnesses like Cho Seung-Hui.

Virginia needs more than lip-service reform

A statement from TAC's executive director- Kurt Entsminger:

"Virginia’s mental illness treatment laws are among the most restrictive in the nation. To get help via involuntary commitment, the state requires someone obviously incapacitated by the symptoms of an illness like schizophrenia to be an immediate physical danger to themselves or others.

Last April, the failures of Virginia’s treatment laws stunned the nation, and the General Assembly finally began to pay attention. The result is literally dozens of commitment law bills now under discussion.

Unfortunately, the majority of the proposed bills only marginally change Virginia’s antiquated laws. They will give legislators a photo op and a warm feeling, but will not bring real help to the people who most need it.

People who are clearly psychotic and dangerous to themselves or others should get mental illness treatment. But Virginia needs to do better. Virginia needs a law like Kendra’s Law, and must also allow outpatient intervention before someone is in crisis." read more...

Failing society and the person in need

As the Virginia General Assembly prepares to convene next week, the tragedy of Virginia Tech and the need for mental health reform loom large over the Commonwealth. One aspect of Virginia’s flawed mental system health that has received a great deal of notoriety is the commitment standard – one of the most restrictive in the nation.

Many have focused on the commitment standard’s inability to address those who may pose a danger to others, but few have commented on its similar failure to protect the individuals themselves who are in crisis. As Virginia Delegate Dave Albo explains, the current standard renders families just as powerless to help their loved ones in those situations.

"You have to wait for the person to deteriorate so much that they fit that definition [of imminent danger]. You have to wait right up until the very end when the person is about to kill themselves before you call," said Albo.

Cho, Kennedy and other tragedies in Virginia

Today’s Washington Post explores Virginia’s restrictive commitment standard that requires “imminent danger” before a person can be ordered into treatment.

Any mention of “imminent danger” and Virginia’s broken mental health system conjures images of 32 students killed at Virginia Tech by Seung Hui Cho in April of 2007 and memorials for the two officers killed by Michael Kennedy in May 2006. Both Cho and Kennedy had fallen through the gaping cracks of Virginia’s archaic mental health system.

For all of the Virginia Tech and Michael Kennedy stories that grab our attention, there are hundreds more private tragedies that don’t make the news. Virginia families are left helpless as their loved one becomes homeless, threatens suicide, is violent, or victimized. Until their loved one is an “imminent danger”, there is little they can do but wait.

This morning’s Washington Post provides a glimpse into one of the many families in Virginia that was forced to wait.

The Reston man who advocates eliminating the standard called for help recently after his son obsessed that federal authorities were eavesdropping on him. He destroyed a toilet and punched holes in the wall. Fairfax's Mobile Crisis Unit came to their home and "agreed that he was very disturbed," the man said. "But in their judgment, what he was saying and doing would not pass the threshold for imminent danger. And having sat through these hearings before, I had to agree with them."

A few weeks later, with what his father described as "a crazed look in his eyes," the young man attacked his father. The father called police, and the son was arrested. He is being treated in a mental hospital while awaiting trial on an assault charge. It took the criminal charge to get the young man held.

"Ideally, when we see terrible things happening," the father said, "we should have been able, before that point was reached, to say, 'This kid is in danger and needs to be treated.' We just couldn't get past that threshold."

Reform is long overdue

Few issues have dominated a political landscape like mental health has in Virginia. With the tragedy at Virginia Tech, the death of two police officers in Fairfax County, and the recent murder of Susanne Thompson in Richmond, it is clear that reform is long overdue.

Virginia Capitol Connections Magazine recognized the unprecedented role that mental health will play in the upcoming legislative session, and made it the subject of their fall issue. Contributors include Governor Kaine, Delegate Phillip Hamilton, and TAC’s own John Snook, who calls on the legislature to recognize the reality of severe mental illness and the need for assisted outpatient treatment.

New resource for privacy laws

Questions over privacy laws were among the many concerns surfaced after the Virginia Tech tragedy. Gov. Tim Kaine’s Va. Tech panel pointed to the misunderstanding and confusion surrounding laws like HIPAA and FERPA. And, as families of those with severe mental illnesses know all too well, privacy laws often create barriers to care and treatment of severe mental illnesses.

The US Department of Education, along with the Department of Homeland Security and the Department of Commerce released guides for the Family Educational Rights and Privacy Act (FERPA) for schools, families, and colleges and universities.

The guides are available here.

An unprecedented focus

In November, Virginia will hold a General Election. Every seat, both in the state Senate and in the House of Delegates is up for election. At the same time, the failings of Virginia’s mental health system have been crystallized by the work of the many commissions and task forces and especially the tragedy at Virginia Tech.

There has never been a better time to contact your legislators!

The upcoming legislative session will see an unprecedented focus on mental health, and legislators want to hear from you. They want to know what seeking treatment for someone is like, and what can be done to make it better. Take a few moments this weekend to find out who is running for office in your area, and where they stand on reforming Virginia’s treatment system.

Make sure they know that a winning campaign platform must include a plan for effective mental health treatment reform.

Guest Blog: Mental Illness and the Law

Guest Blog:
Written by Robert Gerard

The specific issue in the Virginia Tech shooting has to do with the criteria for having someone like Cho Seung-Hui hospitalized involuntarily. Ask any mental health professional about the criteria for involuntary hospitalization. It’s a joke! To be hospitalized involuntarily, the person must demonstrate behavior that demonstrates “immediate danger to self or others.” In our current zealous pursuit of civil rights, this means that the troubled person must be in the process of cutting her wrist or putting a noose around her head or explicitly threatening someone. “Ideation” (the psycho-babble label for expressing thoughts or ideas about harming self or others) doesn’t qualify.

Does anyone remember New York Mayor Koch’s heroic attempts to find shelters for homeless people during the bitter winter of 1987? In the wake of sub-zero temperatures, the Mayor insisted that the homeless, who were curled up on city streets, be taken to shelters for their own safety. One mentally ill person refused assistance, and the Mayor received a firestorm of criticism from civil rights advocates who rushed to protect those who had no insight into the danger they faced.

While video cameras, campus police, and other sources of security are important, the solution to avoiding another tragedy like the one at Virginia Tech lies in promoting and passing legislation that broadens the criteria for involuntary hospitalization of mentally ill persons who demonstrate a “potential” danger to self or to other members of the community.

Just think about what might not have happened if Professor Lucinda Roy’s appeal for intervention for Cho had been supported by the law and the mental health system.

Robert Gerard is a Professor Emeritus at Mount Saint Mary’s University in Emmitsburg Maryland, and has worked as a volunteer in a community mental health center. He is a member of the National Alliance for the mentally Ill (NAMI) and the parent of a child who is mentally ill.

The opinions expressed by guest bloggers are their own and not necessarily that of the Treatment Advocacy Center.Want to be a guest blogger? Tell us why at info@treatmentadvocacycenter.org.

VA Tech: The HIPAA Excuse?

The HIPAA privacy rules (see summary) were never intended to block people from getting needed medical attention. Yet, yesterday we learned from Governor Kaine’s Panel on the Virginia Tech shootings that school officials and mental health professionals claimed the law prevented them from communicating with each other and getting Cho the treatment that he so obviously needed.

That’s simply not true. As the Virginia Tech report and its authors explained, the HIPAA law doesn’t bar all communications about a person’s medical history. In fact, there are specific provisions for medical emergencies, for sharing information with family members and caregivers, and for communicating the presence of a person in the hospital (about page 4).

Another important fact is that the privacy law does not prohibit mental health professionals from LISTENING to information about a patient.

For a more detailed look at releasing health information to the families of people with severe mental illnesses, read this Catalyst article.

Everyone failed Cho: VA Tech panel calls for better commitment law

What happened to keep Seung Hui Cho from getting needed treatment and at what point could the Virginia Tech massacre have been prevented? The state-appointed panel charged with answering those questions released its report today, stating in part that “The Virginia standard for involuntary commitment is one of the most restrictive in the nation and is not uniformly applied.”

The report details Cho's mental health history and the many lost opportunities to help him, and makes recommendations to improve Virginia’s restrictive mental health treatment law.

The scope and extent of how Cho was ultimately failed by every facet of the system is stunning. Read TAC's press release on the report.

Mental health and the Virginia Tech review panel

The Virginia Tech Review Panel will hold its fourth public meeting on Wednesday, July 18th, at the University of Virginia in Charlottesville. The meeting, which is scheduled to begin at 9AM, will focus heavily on mental health issues with presentations on civil commitment law reform and mental health issues. The agenda for the meeting can be found here. Directions and a campus map are available here.

Advocates should note that extra time has been allotted at this meeting for public comment, so we encourage everyone with an interest in seeing effective mental health care for Virginia to attend the meeting and make your voices heard.

No drugs in Cho's system

The anti-psychiatry crowd tried to use the Virginia Tech case to paint the frightening image that psychiatric medications caused Seung-Hui Cho to go on a murderous rampage. In an unsigned letter, one group issued a demand for the toxicology report under the Virginia Freedom of Information Act, threatening legal action.

Last week, the results of toxicology tests were released. But, the fearmongers won’t be pleased. The state medical examiner's office found no trace of prescription drugs or toxic substances in Cho's body.

In this day and age, it is hard to believe that there are still people who deny the existence of severe mental illnesses and point to everything but untreated psychotic symptoms as the cause of harmful behaviors. But, the research shows that schizophrenia and bipolar disorder are diseases of the brain. And as most people suspected, it was Cho’s untreated symptoms that caused so much devastation.

Violence, mental illness and stigma: A misleading combination

A recent letter to the editor in the Frederick Free Lance-Star takes the politically correct stance that people with mental illnesses are no more violent than the general public. This myth is further asserted by claims that recognizing and trying to address the correlation between violence and untreated mental illness creates stigma which in turn is the greatest barrier to treatment. This is mental health sophistry.

Certainly, when people with a severe mental illness are receiving appropriate treatment, they are no more violent than the general population; however, a number of studies show that a portion of people with mental illnesses ARE more dangerous when not receiving treatment.

As TAC president, Dr. E. Fuller noted in his recent op-ed in the Wall Street Journal:

Since 1994, nine U.S. studies have illustrated this [link to violence and untreated mental illness]. The best known, the Violence Risk Assessment Study, funded by the MacArthur Foundation, followed 961 seriously mentally ill individuals for one year after hospital discharge. During that time, these individuals committed 608 acts of serious violence (physical injury, threat of or actual assault with a weapon, or sexual assault), including six homicides. The most important finding: Those who regularly attended treatment sessions had less than one-quarter the rate of violence compared to those who did not.

As for stigma as the greatest barrier to treatment? Hardly. Surely stigma exists and keeps some people from seeking treatment, but as we’ve witnessed with the recent Virginia Tech shootings, the greatest barriers to treatment are misinformation, lack of education amongst mental health professionals, and poor treatment laws.

A common sense mental health system? We can only hope.

In his Sunday column in the Washington Post, Marc Fisher makes the following observation about the arcane application of confidentiality in mental health:

“But any system that lets rigid laws take precedence over common sense, human caring and the free flow of information is destined to fail.”

He quotes Marcus Martin, an emergency room physician who is on Virginia Governor Kaine's commission investigating the Virginia tech shooting whose common sense view leads him to observe:

"We keep head-injured patients, trauma patients, involuntarily all the time," said. "We don't rely on the legal system. It should be the same for mental health."

But, it’s not just in Virginia that questions about the mental health system’s hyper-vigilance about confidentiality have arisen. Maine Senator Peter Mills (R-Somerset) introduced a bill this session that is intended to clarify confidentiality provisions so that mental health professionals can disclose information to families and caregivers who may be at risk of harm from a psychiatric patient.

Hopefully, this is all part of a trend to bring common sense in the application of confidentiality in mental health cases.

Report to the President- Commitment laws & practices

After the tragedies at Virginia Tech, President Bush sent three of his most important advisors in search of ways to help prevent such horrific events in the future. Health Secretary Michael Leavitt, Education Secretary Margaret Spellings and Attorney General Alberto Gonzales met with educators, mental health experts, and law enforcement leaders in a dozen states. Yesterday they issued their report to the President.

One of the key findings: “It is critical to get people with mental illness the services they need.” That goal is obvious to set and easy to state but momentously difficult to achieve, which the report’s authors – to their credit – recognize. They advise states to:

“Review emergency services and commitment laws to ensure the standards are clear, appropriate, and strike the proper balance among liberty, safety for the individual and the community, and appropriate treatment.”

As the standard for intervention in Virginia is “imminent danger” and the focus of the report is prevention of violent incidents, the target of this instruction is clear – the adoption of reformed treatment laws.

Additionally, the Department Secretaries and Attorney General warn that interventions must not only be made more available, but also followed through on. They recommend to the states that “Where a legal ruling mandates a course of treatment, make sure that systems are in place to ensure thorough follow-up.”