Saturday, April 15, 2017


Another perplexing problem centering on keeping information from both the public’s eye and from the Governor’s Review Panel centers on Cho’s “lost” medical records. There is no evidence that Cho’s medical records were intentionally lost, but their disappearance was certainly convenient from the school’s point of view. The circumstances surrounding Cho’s missing medical records and then their discovery have a particularly unsavory odor. Indeed, all the hemming and hawing by individuals in positions of authority—following the discovery of Cho’s medical records—brings into question the credibility of those who claim to search for truth in the aftermath of the shootings at Virginia Tech.

I fully agree with the Richmond Times-Dispatch when it wrote, “It strains credulity to think that files relating to the worst campus massacre in American history simply have slipped the mind of the very person (Robert Miller) who had counseled the gunman.” Robert Miller, the former director of the school’s counseling center, was in fact among several senior school officials who consulted with English department Chairwoman Lucinda Roy when she sought help for Cho after Professor Nikki Giovanni barred Cho from one of her writing classes.

Somehow Dr. Miller forgot that he had Cho’s medical records. It is amazing that someone so absent-minded could ever have risen to be the head of the Cook Counseling Center. Just the fact that a patient’s medical records were “accidently” removed from an office in the first place raises questions about his motive and professionalism.

What the records show is a lack of thoroughness in dealing with a deeply troubled student. This lack of thoroughness raises the specter of culpability on the part of some officials at the Cook Counseling Center. The records show that the Center had numerous opportunities to deal with Cho’s mental instability and did nothing. For example, as early as 2005, a Counseling Center staff member described Cho as “troubled” and in need of follow-up counseling. That follow up did not take place.  The legal question that will probably never be addressed (or answered) is whether or not the counseling center is liable for its lack of professionalism in handing Cho’s records. What is clear is that both Dr. Miller’s and the center’s poor practices should have at least brought a review of their licenses.
School officials said that they were “dismayed” that the records were found in Miller’s possession.  It is one thing to express this emotion and another to act on it. In fact, if anything characterizes the reaction of people in positions of authority (school leaders and politicians) since the Virginia Tech tragedy of April 16, 2007, it is that they are long on words and short on action. I would have thought that the school would have been in the forefront of thoroughly examining the Cook Counseling Center and scrubbing it to remove any question of incompetence. Not only was the school quiet on the counseling center’s conduct, but the Governor’s Review Panel never interviewed Robert Miller.

Then there are the school’s claims of ignorance of the law. If we recall correctly, Virginia Tech said it did not contact the Cho family about their son’s odd and menacing behavior because of privacy issues. The same defense was given as reason for the various school components (who were aware of the problems Cho presented) for not communicating and consulting with each other. In fact, the school was wrong in all cases.

According to the U.S. Department of Justice and Human Services, there was plenty of support under the Health Information Privacy Act for notifying Cho’s parents.

The Privacy Rule sets rules and limits on who can look at and receive your health information. To make sure that your health information is protected in a way that does not interfere with your health care, your information can be used ads shared:

1.  For your treatment and care coordination
2.  To pay doctors and hospitals for your health care and to help run their business
3.  With your family, relatives, friends, or others you identify who are involved in your health care or your health care bills, unless you object
4.  To make sure doctors give good care and nursing homes are clean and safe
5.   To protect the public’s health, such as by reporting when the is in your area
6.   To make required reports to the police such as reporting gunshot wounds

As far as his school records go, there was no reason for his high school not to share information with Virginia Tech, and no justification for Virginia Tech to withhold information from the Governor’s Review Panel. According the U.S. Department of Education, writing about the Family Education and Rights Privacy Act:

            Generally, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record. However, FERPA allows schools to disclose those records, without consent to the following parties or under the following conditions (34 CFR 99.31):

1.  School officials with legitimate educational interest;
2.  Other schools to which a student is transferring;
3.   Specific officials for audit or evaluation purposes;
4.  Appropriate parties in connection with financial aid to a student;
5. Organizations conducting certain studies for or on behalf of the      school;
6.  Accrediting organizations;
7.  To comply with a judicial order or lawfully issued subpoena;
8.  Appropriate officials in cases of health and safety emergencies; and
9.  State and local authorities, within a juvenile justice system pursuant to specific State law.

Clearly, in Cho’s case, there should not have been any serious obstacles to health workers or university staff sharing information among themselves about his case. In fact this is reiterated on Virginia Tech’s own Web site where it lists the rights to privacy that a student may expect with regard to academic records:

The right to consent to disclosures of personally indentifiable information contained in the student’s education records, except to the extent that FERPA authorizes disclosure without consent. One exception which permits disclosure without consent is disclosure to school officials with legitimate educational interests or concerns of health safety. A school official is a person employed by the university in an administrative, supervisor, academic or research, or support staff position (such as health staff); a person or company with whom the university has contracted (such as an attorney, auditor, or collection agent); a person serving on the Board of Visitors; or a student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks. A school official has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility.

Privacy and the right to privacy seem to bounce around at Virginia Tech like a leaky balloon—sometimes privacy is respected, sometimes not. I am confused. To borrow a word that university officials used, I am “dismayed.”  Can there really be confusion about patients’ privacy?

You have to wonder—how can one of this nation’s best academic universities be so ignorant of the law? (To be continued)

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